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PA Bulletin, Doc. No. 05-314


Title 225--RULES

[225 PA. CODE ART. VI]

Proposed Amendment to Pa.R.E. 601 and Revision of Comment

[35 Pa.B. 1330]

   The Committee on Rules of Evidence is planning to recommend that the Supreme Court of Pennsylvania approve the Amendment to Rule of Evidence 601 as well as the revision of the Comment to Rule of Evidence 601. The changes are being proposed to conform Pa.R.E. 601 to F.R.E 601.

   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 Report 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 Report.

   The text of the proposed Amended Rule and Comment changes precede the Report. Additions are bold, and deletions are in bold and brackets.

   We request that interested persons submit suggestions, comments, or objections concerning this proposal to the Committee through counsel:

Richard L. Kearns
Staff Counsel
Supreme Court of Pennsylvania
Committee on Rules of Evidence
5035 Ritter Road, Suite 700
Mechanicsburg, PA 17055

   no later than March 25, 2005

By the Committee on Rules of Evidence


Annex A



Rule 601. General Rule of Competency.

   [(a)  General Rule. ] Every person is competent to be a witness except as otherwise provided by statute or in these Rules.

   [(b)  Disqualification for Specific Defects. A person is incompetent to testify if the Court finds that because of a mental condition or immaturity the person:

   (1)  is, or was, at any relevant time, incapable of perceiving accurately;

   (2)  is unable to express himself or herself so as to be understood either directly or through an interpreter;

   (3)  has an impaired memory; or

   (4)  does not sufficiently understand the duty to tell the truth.]


   [Pa.R.E. 601(a) differs from F.R.E. 601. F.R.E. 601 abolishes all existing grounds of incompetency except for those specifically provided in later rules dealing with witnesses and in civil actions governed by state law. Pa.R.E. 601(b) has no counterpart in the Federal Rules.

   Pa.R.E. 601(a) is consistent with Pennsylvania statutory law. 42 Pa.C.S.A. §§ 5911 and 5921 provide that all witnesses are competent except as otherwise provided. Pennsylvania statutory law provides several instances in which witnesses are incompetent. See, e.g., 42 Pa.C.S.A. § 5922 (persons convicted in a Pennsylvania court of perjury incompetent in civil cases); 42 Pa.C.S.A. § 5924 (spouses incompetent to testify against each other in civil cases with certain exceptions set out in 42 Pa.C.S.A. §§ 5925, 5926, and 5927); 42 Pa.C.S.A. §§ 5930--5933 and 20 Pa.C.S.A. § 2209 (''Dead Man's statutes'').

   Pa.R.E. 601(a) does not recognize any decisional grounds for incompetency. At one time Pennsylvania law provided that neither a husband nor a wife was competent to testify to non-access or absence of sexual relations if the effect of that testimony would illegitimatize a child born during the marriage. See Commonwealth ex rel. Leider v. Leider, 434 Pa. 293, 254 A.2d 306 (1969). This rule was abandoned in Commonwealth ex rel. Savruk v. Derby, 235 Pa. Super. 560, 344 A.2d 624 (1975).

   Pa.R.E. 601(b) is consistent with Pennsylvania law concerning the competency of persons with a mental defect and children of tender years. See Commonwealth v. Goldblum, 498 Pa. 455, 447 A.2d 234 (1982) (mental capacity); Rosche v. McCoy, 397 Pa. 615, 156 A.2d 307 (1959) (immaturity). The application of the standards in Pa.R.E. 601(b) is a factual question to be resolved by the Court. Expert testimony has been used when competency under these standards has been an issue. E.g., Commonwealth v. Baker, 466 Pa. 479, 353 A.2d 454 (1976); Commonwealth v. Gaerttner, 355 Pa. Super. 203, 484 A.2d 92 (1984). Pa.R.E. 601(b) is intended to preserve existing law and not to expand it.

   Pa.R.E. 601(b) does not address the admissibility of hypnotically refreshed recollection. In Commonwealth v. Nazarovitch, 496 Pa. 97, 436 A.2d 170 (1981), the Supreme Court rejected hypnotically refreshed testimony, where the witness had no prior independent recollection. Applying the test of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) for scientific testimony, the Court was not convinced that the process of hypnosis as a means of restoring forgotten or repressed memory had gained sufficient acceptance in its field. Commonwealth v. Nazarovitch, supra; see also Commonwealth v. Romanelli, 522 Pa. 222, 560 A.2d 1384 (1989) (when witness has been hypnotized, he or she may testify concerning matters recollected prior to hypnosis, but not about matters recalled only during or after hypnosis); Commonwealth v. Smoyer, 505 Pa. 83, 476 A.2d 1304 (1984) (same). Pa.R.E. 601(b) is not intended to change these results. For the constitutional implications when a defendant in a criminal case, whose memory has been hypnotically refreshed, seeks to testify, see Rock v. Arkansas, 483 U. S. 44 (1987).]

   Pa.R.E. 601 is essentially the same as F.R.E. 601, except that the Pennsylvania rule recognizes statutory grounds of incompetency.

   The following three Pennsylvania statutes apply only in civil cases.

   42 Pa.C.S. § 5922 says that a person who has been convicted in a Pennsylvania court of perjury, subornation of perjury, or solicitation to commit perjury, ''shall not be a competent witness for any purpose,'' unless the case is one to redress or prevent injury or violence to the witness's person or property. However, if the conviction is set aside or reversed, or the witness is pardoned by the Governor, the witness can testify. See Diehl v. Rodgers, 169 Pa. 316, 32 A. 424 (1895).

   42 Pa.C.S. § 5924 says, with five enumerated exceptions, that ''neither husband nor wife shall be competent . . . to testify against each other.''

   42 Pa.C.S. § 5930, a single sentence of 318 words, says, with various qualifications, that where any party to a thing or contract in action is dead, or has been adjudged a lunatic, ''neither any surviving or remaining party to such thing or contract, nor any other person whose interest shall be adverse to the said right of such deceased or lunatic party, shall be a competent witness to any matter occurring before the death of said party or the adjudication of his lunacy . . . .'' This statute is commonly referred to as the Dead Man's Act.

   With respect to criminal cases, 42 Pa.C.S. § 5911 says that ''all persons shall be fully competent witnesses in any criminal proceeding before any tribunal.''

   Rules of evidence under which a witness may be found incompetent to testify, in whole or in part, may be found in Article IV (relevancy and its limits), Article VI (witnesses), and Article VII (opinions and expert testimony).

   The qualification of a witness to testify is now determined as a preliminary matter by the trial court under Pa.R.E. 104(a). Any voir dire with respect thereto must be conducted outside the presence of the jury, at least if the witness is a child. See Commonwealth v. Washington, 554 Pa. 559, 722 A.2d 643 (1998).

   In criminal cases, the United States Constitution occasionally requires the admission or exclusion of evidence, despite contrary state law with respect to testimonial competency. See, e.g., Rock v. Arkansas, 483 U. S. 44, 107 S.Ct. 2704. 97 L.Ed.2d 37 (1987) (Arkansas violated the due process clause of the Fourteenth Amendment when it precluded the defendant from presenting hypnotically refreshed testimony); Foster v. California, 394 U. S. 440, 89 S.Ct. 1127, 22 Led.2d 402 (1969) (California violated the due process clause of the Fourteenth Amendment when it allowed a witness for the prosecution to give identification testimony after the witness's memory had been tainted by an unduly suggestive pretrial procedure).


Proposed Amendment to Pa.R.E. 601 and Revision of Comment


   The Committee on Rules of Evidence is planning to recommend that the Supreme Court of Pennsylvania approve the amendment of Pa.R.E. 601 and Revision of Comment.

   This amendment is proposed to conform Pa.R.E. 601 with F.R.E. 601 and to eliminate subsection (b) because it is unnecessary. No other state has a subsection (b). The Comment Revision is proposed to make it consistent with this text of the new rule and to set forth the statutes addressing competency.

[Pa.B. Doc. No. 05-314. Filed for public inspection February 18, 2005, 9:00 a.m.]

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