Title 225 Pa. Code — Rules of Evidence

Chapter 1 GENERAL PROVISIONS

225 Pa. Code Rule 101 Scope, Adoption and Citation, and Construction of Rules. {#sec-rule-101 omnilex-key=us-pa-regs-official--title-225--Rule 101}

(a) Scope. These rules of evidence govern proceedings in all courts of the Commonwealth of Pennsylvania’s Unified Judicial System, except as otherwise provided by law.

(b) Adoption and Citation. These rules of evidence are adopted by the Supreme Court of Pennsylvania under the authority of Article V § 10(c) of the Constitution of Pennsylvania, adopted April 23, 1968. They shall be known as the Pennsylvania Rules of Evidence and shall be cited as ‘‘Pa.R.E.’’

(c) Construction. In the construction of the Pennsylvania Rules of Evidence, the principles set forth in Pa.R.J.A. 104 to 115 shall be observed.

Preface to Comments

The original Comments to the Pennsylvania Rules of Evidence were prepared by the Ad Hoc Committee on Evidence. The Comments accompanied the Pennsylvania Rules of Evidence that were adopted by the Pennsylvania Supreme Court on May 8, 1998. The Pennsylvania Rules of Evidence closely followed the format, language, and style of the Federal Rules of Evidence, but the guiding principle was to preserve the Pennsylvania law of evidence. The original Comments reflected this approach by identifying the Pennsylvania sources of the law. The original Comments also compared the Pennsylvania Rules to the Federal Rules for the convenience of the Bench and Bar.

The Federal Rules of Evidence were amended effective December 1, 2011. The goal of the Federal amendments was to make the rules more easily understood and to make the format and terminology more consistent, but to leave the substantive content unchanged. The Pennsylvania Rules of Evidence were rescinded and replaced on January 17, 2013, and become effective on March 18, 2013. They closely follow the format, language, and style of the amended Federal Rules of Evidence. The goal of the Pennsylvania Supreme Court’s rescission and replacement of the Pennsylvania Rules of Evidence was likewise to make its rules more easily understood and to make the format and terminology more consistent, but to leave the substantive content unchanged. Once again, the guiding principle is to preserve the Pennsylvania law of evidence.

These Comments are prepared by the Pennsylvania Supreme Court’s Committee on Rules of Evidence for the convenience of the Bench and Bar. The Comments have not been adopted by the Supreme Court and it is not intended that they have precedential significance.

A principal goal of these rules is to construct a comprehensive code of evidence governing court proceedings in the Commonwealth of Pennsylvania. However, these rules cannot be all-inclusive. Some of our law of evidence is governed by the Constitutions of the United States and of Pennsylvania. Some is governed by statute. Some evidentiary rules are contained in the Rules of Civil and Criminal Procedure and the rules governing proceedings before courts of limited jurisdiction. Traditionally, our courts have not applied the law of evidence in its full rigor in proceedings such as preliminary hearings, bail hearings, grand jury proceedings, sentencing hearings, parole and probation hearings, extradition or rendition hearings, and others. Traditional rules of evidence have also been relaxed to some extent in custody matters, see, e.g., Pa.R.C.P. No. 1915.11(b) (court interrogation of a child), and other domestic relations matters, see, e.g., Pa.R.C.P. No. 1930.3 (testimony by electronic means).

Decisional law is applicable to some evidentiary issues not covered by these rules. This would include for example, the corpus delicti rule, see Commonwealth v. Fears, 575 Pa. 281, 836 A.2d 52 (2003); the collateral source rule, see Boudwin v. Yellow Cab Co., 410 Pa. 31, 188 A.2d 259 (1963); and the parol evidence rule, see Yocca v. Pittsburgh Steelers Sports, Inc., 578 Pa. 479, 854 A.2d 425 (2004). The Pennsylvania Rules of Evidence are not intended to supersede these other provisions of law unless they do so expressly or by necessary implication.

These rules are applicable in the courts of the Commonwealth of Pennsylvania’s unified judicial system. In some respects, these rules are applicable in administrative proceedings. See, e.g., Gibson v. W.C.A.B., 580 Pa. 470, 861 A.2d 938 (2004) (evidentiary rules 602, 701 and 702 applicable in agency proceedings in general, including Workers’ Compensation proceedings). These rules are also applicable in compulsory arbitration hearings, with specific exceptions relating to the admissibility of certain written evidence and official documents. See Pa.R.C.P. No. 1305.

Official Note

Adopted May 8, 1998, effective October 1, 1998; Comment revised December 30, 2005, effective February 1, 2006; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

Final Report explaining the December 30, 2005 revision of the Comment published with the Court’s Order at 36 Pa.B. 384 (January 28, 2006).

Final Report explaining the January 17, 2013 rescission and replacement published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013).

The provisions of this Rule 101 amended December 30, 2005, effective February 1, 2006, 36 Pa.B. 384; rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620; amended November 3, 2023, effective January 1, 2024, 53 Pa.B. 7138. Immediately preceding text appears at serial pages (378295) to (378296).

History

• Source: The provisions of this Rule 101 amended December 30, 2005, effective February 1, 2006, 36 Pa.

225 Pa. Code Rule 102 Application of Rules. {#sec-rule-102 omnilex-key=us-pa-regs-official--title-225--Rule 102}

These rules should be applied so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination.

This rule is similar to F.R.E. 102.

The provisions of this Rule 102 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620; amended November 3, 2023, effective January 1, 2024, 53 Pa.B. 7138. Immediately preceding text appears at serial page (365855).

History

• Source: The provisions of this Rule 101 amended December 30, 2005, effective February 1, 2006, 36 Pa.

225 Pa. Code Rule 103 Rulings on Evidence. {#sec-rule-103 omnilex-key=us-pa-regs-official--title-225--Rule 103}

(a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only:

(1) if the ruling admits evidence, a party, on the record:

(A) makes a timely objection, motion to strike, or motion in limine; and

(B) states the specific ground, unless it was apparent from the context; or

(2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.

(b) Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitively on the record—either before or at trial—a party need not renew an objection or offer of proof to preserve a claim of error for appeal.

(c) Court’s Statement About the Ruling; Directing an Offer of Proof. The court may make any statement about the character or form of the evidence, the objection made, and the ruling. The court may direct that an offer of proof be made in question-and-answer form.

(d) Preventing the Jury from Hearing Inadmissible Evidence. To the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means.

Pa.R.E. 103(a) differs from F.R.E. 103(a). The Federal Rule says, ‘‘A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party. . . .’’ In Pennsylvania criminal cases, the accused is entitled to relief for an erroneous ruling unless the court finds beyond a reasonable doubt that the error is harmless. See Commonwealth v. Story, 383 A.2d 155 (Pa. 1978). Civil cases are governed by Pa.R.Civ.P. 126(a) which permits the court to disregard an erroneous ruling ‘‘which does not affect the substantial rights of the parties.’’ Pa.R.E. 103(a) is consistent with Pennsylvania law.

Pa.R.E. 103(a)(1) specifically refers to motions in limine. These motions are not mentioned in the Federal rule. Motions in limine permit the trial court to make rulings on evidence prior to trial or at trial but before the evidence is offered. Such motions can expedite the trial and assist in producing just determinations.

Pa.R.E. 103(b), (c) and (d) are identical to F.R.E. 103(b), (c) and (d).

F.R.E. 103(e) permits a court to ‘‘take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved.’’ This paragraph has not been adopted because it is inconsistent with Pa.R.E. 103(a) and Pennsylvania law. See Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974); Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974).

The provisions of this Rule 103 amended November 2, 2001, effective January 1, 2002, 31 Pa.B. 6381; rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620; amended November 3, 2023, effective January 1, 2024, 53 Pa.B. 7138. Immediately preceding text appears at serial pages (365855) to (365856).

History

• Source: The provisions of this Rule 101 amended December 30, 2005, effective February 1, 2006, 36 Pa.

225 Pa. Code Rule 104 Preliminary Questions. {#sec-rule-104 omnilex-key=us-pa-regs-official--title-225--Rule 104}

(a) In General. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.

(b) Relevance That Depends on a Fact. When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.

(c) Conducting a Hearing So That the Jury Cannot Hear it. The court must conduct any hearing on a preliminary question so that the jury cannot hear it if:

(1) the hearing involves evidence alleged to have been obtained in violation of the defendant’s rights;

(2) a defendant in a criminal case is a witness and so requests; or

(3) justice so requires.

(d) Cross-Examining a Defendant in a Criminal Case. By testifying on a preliminary question, a defendant in a criminal case does not become subject to cross-examination on other issues in the case.

(e) Weight and Credibility. Even though the court rules that evidence is admissible, this does not preclude a party from offering other evidence relevant to the weight or credibility of that evidence.

Pa.R.E. 104(a) is identical to F.R.E. 104(a).

The second sentence of Pa.R.E. 104(a) is based on the premise that, by and large, the law of evidence is a ‘‘child of the jury system’’ and that the rules of evidence need not be applied when the judge is the fact finder. The theory is that the judge should be empowered to hear any relevant evidence to resolve questions of admissibility. This approach is consistent with Pennsylvania law. See Commonwealth v. Raab, 594 Pa. 18, 934 A.2d 695 (2007).

Pa.R.E. 104(a) does not resolve whether the allegedly inadmissible evidence alone is sufficient to establish its own admissibility. Some other rules specifically address this issue. For example, Pa.R.E. 902 provides that some evidence is self-authenticating. But under Pa.R.E. 803(25), the allegedly inadmissible evidence alone is not sufficient to establish some of the preliminary facts necessary for admissibility. In other cases the question must be resolved by the trial court on a case-by-case basis.

Pa.R.E. 104(b) is identical to F.R.E. 104(b).

Pa.R.E. 104(c)(1) differs from F.R.E. 104(c)(1) in that the Federal Rule says ‘‘the hearing involves the admissibility of a confession;’’ Pa.R.E. 104(c)(1) is consistent with Pa.R.Crim.P. 581(F), which requires hearings outside the presence of the jury in all cases in which it is alleged that the evidence was obtained in violation of the defendant’s rights.

Pa.R.E. 104(c)(2) and (3) are identical to F.R.E. 104(c)(2) and (3). Paragraph (c)(3) is consistent with Commonwealth v. Washington, 554 Pa. 559, 722 A.2d 643 (1998), a case involving child witnesses, in which the Supreme Court created a per se rule requiring competency hearings to be conducted outside the presence of the jury. In Commonwealth v. Delbridge, 578 Pa. 641, 855 A.2d 27 (2003), the Supreme Court held that a competency hearing is the appropriate way to explore an allegation that the memory of a child has been so corrupted or ‘‘tainted’’ by unduly suggestive or coercive interview techniques as to render the child incompetent to testify.

Pa.R.E. 104(d) is identical to F.R.E. 104(d). In general, when a party offers himself or herself as a witness, the party may be questioned on all relevant matters in the case. See Agate v. Dunleavy, 398 Pa. 26, 156 A.2d 530 (1959). Under Pa.R.E. 104(d), however, when the accused in a criminal case testifies with regard to a preliminary question only, he or she may not be cross-examined as to other matters. This is consistent with Pa.R.E. 104(c)(2) in that it is designed to preserve the defendant’s right not to testify in the case in chief.

Pa.R.E. 104(e) differs from F.R.E. 104(e) to clarify the meaning of this paragraph.

Official Note

Adopted May 8, 1998, effective October 1, 1998; Comment revised March 29, 2001, effective April 1, 2001; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

Final Report explaining the March 29, 2001 revision of the Comment published with the Court’s Order at 31 Pa.B. 1995 (April 14, 2001).

Final Report explaining the January 17, 2013 rescission and replacement published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013).

The provisions of this Rule 104 amended March 29, 2001, effective April 1, 2001, 31 Pa.B. 1993; amended March 29, 2005, effective May 2, 2005, 35 Pa.B. 2209; amended May 15, 2007, effective June 15, 2007, 37 Pa.B. 2492; amended January 23, 2009, effective immediately, 39 Pa.B. 410; rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620. Immediately preceding text appears at serial pages (341549) to (341551).

History

• Source: The provisions of this Rule 101 amended December 30, 2005, effective February 1, 2006, 36 Pa.

225 Pa. Code Rule 105 Limiting Evidence That is Not Admissible Against Other Parties or for Other Purposes. {#sec-rule-105 omnilex-key=us-pa-regs-official--title-225--Rule 105}

If the court admits evidence that is admissible against a party or for a purpose—but not against another party or for another purpose—the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly. The court may also do so on its own initiative.

The first sentence of Pa.R.E. 105 is identical to F.R.E. 105. The second sentence was added to conform to Pennsylvania practice. There are other ways to deal with evidence that is admissible against one party but not another, or for one purpose but not another. For example, the evidence may be redacted. See Commonwealth v. Johnson, 474 Pa. 410, 378 A.2d 859 (1977). In some cases, severance may be appropriate. See Commonwealth v. Young, 263 Pa. Super. 333, 397 A.2d 1234 (1979). Where the danger of unfair prejudice outweighs probative value the evidence may be excluded. See Pa.R.E. 403.

Official Note

Adopted May 8, 1998, effective October 1, 1998; Comment revised March 10, 2000, effective immediately; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

Final Report explaining the March 10, 2000 revision of the Comment deleting ‘‘as amended’’ from the second sentence published with the Court’s Order at 30 Pa.B. 1641 (March 25, 2000).

Final Report explaining the January 17, 2013 rescission and replacement published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013).

The provisions of this Rule 105 amended March 10, 2000, effective immediately, 30 Pa.B. 1639; rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620. Immediately preceding text appears at serial pages (341551) to (341552).

History

• Source: The provisions of this Rule 101 amended December 30, 2005, effective February 1, 2006, 36 Pa.

225 Pa. Code Rule 106 Remainder of or Related Writings or Recorded Statements. {#sec-rule-106 omnilex-key=us-pa-regs-official--title-225--Rule 106}

If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part—or any other writing or recorded statement—that in fairness ought to be considered at the same time.

This rule and F.R.E. 106 differ in two respects. First, F.R.E. 106, unlike this rule, does not require a statement to be written or recorded. Rather, F.R.E. 106 ‘‘covers all statements, including oral statements that have not been recorded.’’ F.R.E. 106, Advisory Committee Notes, 2023 Amendments, [para ] 3. Second, F.R.E. 106 permits the adverse party to introduce any other part of the statement or any other statement over a hearsay objection so long as the completing statement ought, in fairness, be considered at the same time. F.R.E. 106. The Pennsylvania rule is silent on this point. A similar principle is expressed in Pa.R.Civ.P. 4020(a)(4), which states: ‘‘If only part of a deposition is offered in evidence by a party, any other party may require the offering party to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts.’’

The purpose of Pa.R.E. 106 is to give the adverse party an opportunity to correct a misleading impression that may be created by the use of a part of a writing or recorded statement that may be taken out of context. This rule gives the adverse party the opportunity to correct the misleading impression at the time that the evidence is introduced. The trial court has discretion to decide whether other parts, or other writings or recorded statements, ought in fairness to be considered contemporaneously with the proffered part.

The provisions of this Rule 106 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620; amended September 22, 2025, effective January 1, 2026, 55 Pa.B. 6949. Immediately preceding text appears at serial page (365858).

History

• Source: The provisions of this Rule 101 amended December 30, 2005, effective February 1, 2006, 36 Pa.

Chapter 2 JUDICIAL NOTICE

225 Pa. Code Rule 201 Judicial Notice of Adjudicative Facts. {#sec-rule-201 omnilex-key=us-pa-regs-official--title-225--Rule 201}

(a) Scope. This rule governs judicial notice of an adjudicative fact only, not a legislative fact.

(b) Kinds of Facts that may be Judicially Noticed. The court may judicially notice a fact that is not subject to reasonable dispute because it:

(1) is generally known within the trial court’s territorial jurisdiction; or

(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

(c) Taking Notice. The court:

(1) may take judicial notice on its own; or

(2) must take judicial notice if a party requests it and the court is supplied with the necessary information.

(d) Timing. The court may take judicial notice at any stage of the proceeding.

(e) Opportunity to be Heard. On timely request, a party is entitled to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. If the court takes judicial notice before notifying a party, the party, on request, is still entitled to be heard.

(f) Instructing the Jury. The court must instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.

This rule is identical to F.R.E. 201, except for subdivision (f).

Pa.R.E. 201(a) limits the application of this rule to adjudicative facts. This rule is not applicable to judicial notice of law. Adjudicative facts are facts about the events, persons, places, or other subjects relevant to the matter before the court. See 1 West’s Pa. Prac., Evidence § § 201-1, 201-2 (4th ed. 2021).

In determining the law applicable to a matter, the judge is sometimes said to take judicial notice of law. In Pennsylvania, judicial notice of law has been regulated by decisional law, statute, and rule. See In re Annual Controller’s Reports for Years 1932, 1933, 1934, 1935 and 1936, 5 A.2d 201 (Pa. 1939) (judicial notice of public laws); 42 Pa.C.S. § 6107 (judicial notice of municipal ordinances); 42 Pa.C.S. § 5327 (judicial notice of laws of any jurisdiction outside the Commonwealth); 45 Pa.C.S. § 506 (judicial notice of the contents of the Pennsylvania Code and the Pennsylvania Bulletin); see also, e.g., Pa.R.A.P. 126 (citation of authority); Pa.R.Civ.P. 242 (same); Pa.R.J.C.P. 138 and 1138 (same), Pa.R.O.C.P. 1.22 (same), Pa.R.Crim.P. 102.1 (same), and Pa.R.Civ.P.M.D.J. 242 (same). This rule is not intended to change existing provisions of law.

Pa.R.E. 201(f) differs from F.R.E. 201(f). Under the Federal Rule the court is required to instruct the jury to accept as conclusive any fact judicially noticed in a civil case. In a criminal case, the judicially noticed fact is not treated as conclusive. Under Pennsylvania law, the judicially noticed fact has not been treated as conclusive in either civil or criminal cases, and the opposing party may submit evidence to the jury to disprove the noticed fact. See Appeal of Albert, 92 A.2d 663 (Pa. 1952); Commonwealth v. Brown, 631 A.2d 1014 (Pa. Super. 1993).

The provisions of this Rule 201 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620; amended February 13, 2023, effective April 1, 2023, 53 Pa.B. 1051. Immediately preceding text appears at serial pages (365859) to (365860).

History

• Source: The provisions of this Rule 201 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.

Chapter 3 PRESUMPTIONS

225 Pa. Code Rule 301 Presumptions. {#sec-rule-301 omnilex-key=us-pa-regs-official--title-225--Rule 301}

Presumptions as they now exist or may be modified by law shall be unaffected by the adoption of these rules.

Pa.R.E. 301 is similar to F.R.E. 301 in that it does not modify existing law. Pa.R.E. 301 differs from F.R.E. 301 in that this rule does not establish the effect of a presumption on the burden of proof.

Official Note

Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

Final Report explaining the January 17, 2013 rescission and replacement published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013).

The provisions of this Rule 301 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620. Immediately preceding text appears at serial page (245743).

History

• Source: The provisions of this Rule 301 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.

Chapter 4 RELEVANCE AND ITS LIMITS

225 Pa. Code Rule 401 Test for Relevant Evidence. {#sec-rule-401 omnilex-key=us-pa-regs-official--title-225--Rule 401}

Evidence is relevant if:

(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and

(b) the fact is of consequence in determining the action.

This rule is identical to F.R.E. 401.

Whether evidence has a tendency to make a given fact more or less probable is to be determined by the court in the light of reason, experience, scientific principles and the other testimony offered in the case.

The relevance of proposed evidence may be dependent on evidence not yet of record. Under Pa.R.E. 104(b), the court may admit the proposed evidence on the condition that the evidence supporting its relevance be introduced later.

Official Note

Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

Final Report explaining the January 17, 2013 rescission and replacement published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013).

The provisions of this Rule 401 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620. Immediately preceding text appears at serial page (317753).

History

• Source: The provisions of this Rule 401 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.

225 Pa. Code Rule 402 General Admissibility of Relevant Evidence. {#sec-rule-402 omnilex-key=us-pa-regs-official--title-225--Rule 402}

All relevant evidence is admissible, except as otherwise provided by law. Evidence that is not relevant is not admissible.

Pa.R.E. 402 differs from F.R.E. 402. The Federal Rule specifically enumerates the various sources of federal rule-making power. Pa.R.E. 402 substitutes the phrase ‘‘by law’’.

Pa.R.E. 402 states a fundamental concept of the law of evidence. Relevant evidence is admissible; evidence that is not relevant is not admissible. This concept is modified by the exceptions clause of the rule, which states another fundamental principle of evidentiary law—relevant evidence may be excluded by operation of constitutional law, by statute, by these rules, by other rules promulgated by the Supreme Court or by rules of evidence created by case law.

Examples of decisionally created rules of exclusion that are not abrogated by the adoption of these rules include: the corpus delicti rule, Commonwealth v. Ware, 459 Pa. 334, 329 A.2d 258 (1974); the collateral source rule, see Boudwin v. Yellow Cab Co., 410 Pa. 31, 188 A.2d 259 (1963); the parol evidence rule, see Yocca v. Pittsburgh Steelers Sports, Inc., 578 Pa. 479, 854 A.2d 425 (2004); and the rule excluding certain evidence to rebut the presumption of legitimacy, see John M. v. Paula T., 524 Pa. 306, 571 A.2d 1380 (1990).

Official Note

Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

Final Report explaining the January 17, 2013 rescission and replacement published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013).

The provisions of this Rule 402 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620. Immediately preceding text appears at serial pages (317753) to (317754).

History

• Source: The provisions of this Rule 401 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.

225 Pa. Code Rule 403 Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons. {#sec-rule-403 omnilex-key=us-pa-regs-official--title-225--Rule 403}

The court may exclude relevant evidence if its probative value is outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Pa.R.E. 403 differs from F.R.E. 403. The Federal Rule provides that relevant evidence may be excluded if its probative value is ‘‘substantially outweighed.’’ Pa.R.E. 403 eliminates the word ‘‘substantially’’ to conform the text of the rule more closely to Pennsylvania law. See Commonwealth v. Boyle, 498 Pa. 486, 447 A.2d 250 (1982).

‘‘Unfair prejudice’’ means a tendency to suggest decision on an improper basis or to divert the jury’s attention away from its duty of weighing the evidence impartially.

Official Note

Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

Final Report explaining the January 17, 2013 rescission and replacement published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013).

The provisions of this Rule 403 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620. Immediately preceding text appears at serial page (317754).

History

• Source: The provisions of this Rule 401 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.

225 Pa. Code Rule 404 Character Evidence; Other Crimes, Wrongs, or Acts. {#sec-rule-404 omnilex-key=us-pa-regs-official--title-225--Rule 404}

(a) Character Evidence.

(1) Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.

(2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:

(A) a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;

(B) subject to limitations imposed by statute a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted the prosecutor may:

(i) offer evidence to rebut it; and

(ii) offer evidence of the defendant’s same trait; and

(C) in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.

(3) Exceptions for a Witness. Evidence of a witness’s character may be admitted under Rules 607, 608, and 609.

(4) Exception in a Civil Action for Assault and Battery. In a civil action for assault and battery, evidence of the plaintiff’s character trait for violence may be admitted when offered by the defendant to rebut evidence that the defendant was the first aggressor.

(b) Other Crimes, Wrongs, or Acts.

(1) Prohibited Uses. Evidence of any other crime, wrong, or act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

(2) Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. In a criminal case this evidence is admissible only if the probative value of the evidence outweighs its potential for unfair prejudice.

(3) Notice in a Criminal Case. In a criminal case the prosecutor must provide reasonable written notice in advance of trial so that the defendant has a fair opportunity to meet it, or during trial if the court excuses pretrial notice on good cause shown, of the specific nature, permitted use, and reasoning for the use of any such evidence the prosecutor intends to introduce at trial.

Pa.R.E. 404(a) differs from F.R.E. 404(a). There are two differences. First, F.R.E. 404(a)(2)(B) gives the defendant the right to introduce evidence of a pertinent trait of character of the alleged victim of the crime subject to the limitations in F.R.E 412. The Pennsylvania Rule differs in that Pennsylvania has not adopted Rule 412. Instead, Pennsylvania recognizes statutory limitations on this right. In particular, 18 Pa.C.S. § 3104 (the Rape Shield Law) often prohibits the defendant from introducing evidence of the alleged victim’s past sexual conduct, including reputation evidence. See Comment to Pa.R.E. 412 (Not Adopted), infra. Second, Pa.R.E 404(a)(4), which applies only to a civil action for assault and battery, is not part of the federal rule. It is based on Bell v. Philadelphia, 341 Pa. Super. 534, 491 A.2d 1386 (1985).

Pa.R.E 404(a)(1) prohibits the use of evidence of a person’s character or trait of character to prove conduct in conformity therewith on a particular occasion. The rationale is that the relevance of such evidence is usually outweighed by its tendency to create unfair prejudice, particularly with a jury. This does not prohibit the introduction of evidence of a person’s character, or trait of character, to prove something other than conduct in conformity therewith. For example, a party must sometimes prove a person’s character or trait of character because it is an element of the party’s claim or defense. See Pa.R.E. 405(b) and its Comment.

A person’s trait of character is not the same as a person’s habit. The distinction is discussed in the Comment to Rule 406, infra. If a person’s trait of character leads to habitual behavior, evidence of the latter is admissible to prove conduct in conformity therewith on a particular occasion, pursuant to Rule 406.

Pa.R.E. 404(a)(2)(A) which deals with the character of a defendant in a criminal case, is identical to F.R.E. 404(a)(2)(A). It allows the defendant to ‘‘put his character in issue,’’ usually by calling character witnesses to testify to his good reputation for a law-abiding disposition, or other pertinent trait of character. If the defendant does so, the Commonwealth may (1) cross-examine such witnesses, subject to the limitations imposed by Rule 405(a), and (2) offer rebuttal evidence.

If a defendant in a criminal case chooses to offer evidence of a pertinent trait of character of an alleged victim under subsection (a)(2)(B), then subsection (a)(2)(B)(ii) allows the Commonwealth to offer evidence that the defendant has the same trait of character. For example, in an assault and battery case, if the defendant introduces evidence that the alleged victim was a violent and belligerent person, the Commonwealth may counter by offering evidence that the defendant was also a violent and belligerent person. Thus, the jury will receive a balanced picture of the two participants to help it decide who was the first aggressor.

Pa.R.E. 404(b)(1) is identical to F.R.E. 404(b)(1). It prohibits the use of evidence of other crimes, wrongs, or acts to prove a person’s character.

Pa.R.E. 404(b)(2), like F.R.E. 404(b)(2), contains a non-exhaustive list of purposes, other than proving character, for which a person’s other crimes, wrongs, or acts may be admissible. But it differs in that Pa.R.E. 404(b)(2) requires the probative value of the evidence to outweigh its potential for prejudice. When weighing the potential for prejudice of evidence of other crimes, wrongs, or acts, the trial court may consider whether and how much such potential for prejudice can be reduced by cautionary instructions. See Commonwealth v. LaCava, 666 A.2d 221 (Pa. 1995). When evidence is admitted for this purpose, the party against whom it is offered is entitled, upon request, to a limiting instruction. See Commonwealth v. Hutchinson, 811 A.2d 556 (Pa. 2002).

Notice pursuant to subdivision (b)(3) must be provided before trial in such time as to allow the defendant a fair opportunity to meet the evidence. See Pa.R.E. 609(b)(2) and 902(11). Notice should be sufficiently in advance of trial so the defendant and court have adequate opportunity to assess the evidence, the purpose for which it is offered, and whether the requirements of Pa.R.E. 403 have been satisfied notwithstanding that a final determination as to the admissibility of the evidence must await trial. See, e.g., Commonwealth v. Hicks, 91 A.3d 47, 53-54 (Pa. 2014). The court may excuse the pretrial notice requirement upon a showing of good cause. When notice is provided during trial after a finding of good cause, the court may need to consider protective measures to assure that the opponent is not prejudiced.

Official Note

Adopted May 8, 1998, effective October 1, 1998; Comment revised November 2, 2001, effective January 1, 2002; rescinded and replaced January 17, 2013, effective March 18, 2013; amended December 2, 2021, effective April 1, 2022.

Committee Explanatory Reports:

Final Report explaining the November 2, 2001 revision of Subsection (a) of the Comment published with the Court’s Order at 31 Pa.B. 6384 (November 24, 2001).

Final Report explaining the January 17, 2013 rescission and replacement published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013).

Final Report explaining the December 2, 2021 amendment of paragraph (b) published with the Court’s Order at 51 Pa.B. 7859 (December 18, 2021).

The provisions of this Rule 404 amended November 2, 2001, effective January 1, 2002, 31 Pa.B. 6381; amended February 28, 2006, effective immediately, 36 Pa.B. 1213 (March 18, 2006); rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620; amended December 2, 2021, effective April 1, 2022, 51 Pa.B. 7858. Immediately preceding text appears at serial pages (406170) and (365865) to (365866).

History

• Source: The provisions of this Rule 401 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.

225 Pa. Code Rule 405 Methods of Proving Character. {#sec-rule-405 omnilex-key=us-pa-regs-official--title-225--Rule 405}

(a) By Reputation. When evidence of a person’s character or character trait is admissible, it may be proved by testimony about the person’s reputation. Testimony about the witness’s opinion as to the character or character trait of the person is not admissible.

(1) On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person’s conduct probative of the character trait in question.

(2) In a criminal case, on cross-examination of a character witness, inquiry into allegations of other criminal conduct by the defendant, not resulting in conviction, is not permissible.

(b) By Specific Instances of Conduct. Specific instances of conduct are not admissible to prove character or a trait of character, except:

(1) In a civil case, when a person’s character or a character trait is an essential element of a claim or defense, character may be proved by specific instances of conduct.

(2) In a criminal case, when character or a character trait of an alleged victim is admissible under Pa.R.E. 404(a)(2)(B) the defendant may prove the character or character trait by specific instances of conduct.

Pa.R.E. 405(a) differs from F.R.E. 405(a). The first sentence of Pa.R.E 405(a) permits proof of character or a character trait by reputation testimony, as does F.R.E. 405(a). But the second sentence specifically prohibits opinion testimony about character or a trait of character. This prohibition is consistent with prior Pennsylvania law. See Commonwealth v. Lopinson, 427 Pa. 284, 234 A.2d 552 (1967), vacated on other grounds, 392 U.S. 647 (1968).

Pa.R.E. 405(a) also differs from F.R.E. 405(a) in that there are two subparagraphs, Pa.R.E. 405(a)(1) and Pa.R.E. 405(a)(2), dealing with cross-examination of a character witness. Pa.R.E. 405(a)(2) prohibits cross-examination of a criminal defendant’s character witnesses regarding criminal conduct of the defendant not resulting in conviction. This is consistent with prior Pennsylvania law. See Commonwealth v. Morgan, 559 Pa. 248, 739 A.2d 1033 (1999). When a reputation witness is cross-examined regarding specific instances of conduct, the court should take care that the cross-examiner has a reasonable basis for the questions asked. See Commonwealth v. Adams, 426 Pa. Super. 332, 626 A.2d 1231 (1993).

Pa.R.E. 405(b) differs from F.R.E. 405(b). Unlike F.R.E. 405(b), Pa.R.E. 405(b) distinguishes between civil and criminal cases in permitting the use of specific instances of conduct to prove character.

With regard to civil cases, Pa.R.E. 405(b)(1) is similar to the Federal Rule in permitting proof of character by specific instances of conduct where character is an essential element of the claim or defense. This is consistent with prior Pennsylvania law. See Matusak v. Kulczewski, 295 Pa. 208, 145 A. 94 (1928); Dempsey v. Walso Bureau, Inc., 431 Pa. 562, 246 A.2d 418 (1968). With regard to criminal cases, under Pa.R.E. 404(a)(2)(B), the accused may offer evidence of a pertinent trait of character of the alleged crime victim. Under Pa.R.E. 405(b)(2) the trait may be proven by specific instances of conduct without regard to whether the trait is an essential element of the charge, or defense. This is consistent with prior Pennsylvania law. See Commonwealth v. Dillon, 528 Pa. 417, 598 A.2d 963 (1991).

Official Note

Adopted May 8, 1998, effective October 1, 1998; amended July 20, 2000; effective October 1, 2000; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

Final Report explaining the July 20, 2000 amendment of paragraph (a) concerning allegations of other criminal misconduct published with the Court’s Order at 30 Pa.B. 3920 (August 5, 2000).

Final Report explaining the January 17, 2013 rescission and replacement published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013).

The provisions of this Rule 405 amended July 20, 2000, effective October 1, 2000, 30 Pa.B. 3919; rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620. Immediately preceding text appears at serial pages (317757) to (317758) and (338879).

History

• Source: The provisions of this Rule 401 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.

225 Pa. Code Rule 406 Habit; Routine Practice. {#sec-rule-406 omnilex-key=us-pa-regs-official--title-225--Rule 406}

Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or there was an eyewitness.

This rule is identical to F.R.E. 406. The concepts of ‘‘habit’’ and ‘‘routine practice’’ denote conduct that occurs with fixed regularity in repeated specific situations. Like the Federal Rule, Pa.R.E. 406 does not set forth the ways in which habit or routine practice may be proven, but leaves this for case-by-case determination. See, e.g., Commonwealth v. Rivers, 537 Pa. 394, 644 A.2d 710 (1994) (allowing testimony based on familiarity with another’s conduct); Baldridge v. Matthews, 378 Pa. 566, 570, 106 A.2d 809, 811 (1954) (testimony of uniform practice apparently permitted without examples of specific instances).

Evidence of habit must be distinguished from evidence of character. Character applies to a generalized propensity to act in a certain way without reference to specific conduct, and frequently contains a normative, or value-laden, component (e.g., a character for truthfulness). Habit connotes one’s conduct in a precise factual context, and frequently involves mundane matters (e.g., recording the purpose for checks drawn).

Official Note

Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

Final Report explaining the January 17, 2013 rescission and replacement published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013).

The provisions of this Rule 406 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620. Immediately preceding text appears at serial page (338879).

History

• Source: The provisions of this Rule 401 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.

225 Pa. Code Rule 407 Subsequent Remedial Measures. {#sec-rule-407 omnilex-key=us-pa-regs-official--title-225--Rule 407}

When measures are taken by a party that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible against that party to prove:

• negligence;

• culpable conduct;

• a defect in a product or its design; or

• a need for a warning or instruction.

But the court may admit this evidence for another purpose such as impeachment or—if disputed—proving ownership, control, or the feasibility of precautionary measures.

Pa.R.E. 407 differs from F.R.E. 407. The rule has been modified to clarify that the rule only protects the party that took the measures. Though F.R.E. 407 is silent on the point, the courts have generally held that the federal rule does not apply when one other than the alleged tortfeasor takes the action because the reason for the rule (to encourage remedial measures) is not then implicated. See, e.g., TLT-Babcock, Inc. v. Emerson Electric Co., 33 F.3d 397, 400 (4th Cir. 1994) (collecting cases).

Official Note

Adopted May 8, 1998, effective October 1, 1998; amended June 12, 2003, effective July 1, 2003; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

Final Report explaining the June 12, 2003 amendments published with the Court’s Order at 33 Pa.B. 2973 (June 28, 2003).

Final Report explaining the January 17, 2013 rescission and replacement published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013).

The provisions of this Rule 407 adopted September 11, 1998, effective October 1, 1998; amended June 12, 2003, effective July 1, 2003, 33 Pa.B. 2973; rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620. Immediately preceding text appears at serial pages (338879) to (338880).

History

• Source: The provisions of this Rule 401 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.

225 Pa. Code Rule 408 Compromise Offers and Negotiations. {#sec-rule-408 omnilex-key=us-pa-regs-official--title-225--Rule 408}

(a) Prohibited Uses. Evidence of the following is not admissible—on behalf of any party—either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:

(1) furnishing, promising, or offering—or accepting, promising to accept, or offering to accept—a valuable consideration in compromising or attempting to compromise the claim; and

(2) conduct or a statement made during compromise negotiations about the claim.

(b) Exceptions. The court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

Pa.R.E. 408(a) differs from F.R.E. 408(a) in that the federal rule in paragraph (a)(2) contains language that seems to permit the use in criminal cases of statements made to government investigators, regulators, or enforcement authority in negotiations in civil cases. That language has not been adopted because the use of such statements might conflict with the policies underlying Pa.R.Crim.P. 586 (relating to dismissal of criminal charges not committed by force or violence upon payment of restitution) or Pa.R.Crim.P. 546 (relating to dismissal upon satisfaction or agreement).

This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations.

Pa.R.E. 408(b) is identical to F.R.E. 408(b).

Admissibility of conduct and statements in mediations pursuant to the Mediation Act of 1996, 42 Pa.C.S. § 5949, is governed by that statute.

Pa.R.E. 408 is consistent with 42 Pa.C.S. § 6141 which provides, in pertinent part, as follows:

§ 6141. Effect of certain settlements

(a) Personal Injuries. Settlement with or any payment made to an injured person or to others on behalf of such injured person with the permission of such injured person or to anyone entitled to recover damages on account of injury or death of such person shall not constitute an admission of liability by the person making the payment or on whose behalf the payment was made, unless the parties to such settlement or payment agree to the contrary.

(b) Damages to Property. Settlement with or any payment made to a person or on his behalf to others for damages to or destruction of property shall not constitute an admission of liability by the person making the payment or on whose behalf the payment was made, unless the parties to such settlement or payment agree to the contrary.

(c) Admissibility in Evidence. Except in an action in which final settlement and release has been pleaded as a complete defense, any settlement or payment referred to in subsections (a) and (b) shall not be admissible in evidence on the trial of any matter.

Official Note

Adopted May 8, 1998, effective October 1, 1998; amended March 10, 2000; effective July 1, 2000; Comment revised March 29, 2001, effective April 1, 2001; amended September 18, 2008, effective October 30, 2008; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

Final Report explaining the March 10, 2000 amendments concerning the inadmissibility of evidence of conduct or statements made in compromise negotiations published at 30 Pa.B. 1643 (March 25, 2000).

Final Report explaining the March 29, 2001 revision of the Comment published with the Court’s Order at 31 Pa.B. 1995 (April 14, 2001).

Final Report explaining the September 18, 2008 amendments published with the Court’s Order at 38 Pa.B. 5423 (October 4, 2008).

Final Report explaining the January 17, 2013 rescission and replacement published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013).

The provisions of this Rule 408 amended March 10, 2000, effective immediately, 30 Pa.B. 1639; amended March 29, 2001, effective April 1, 2001, 31 Pa.B. 1993; amended September 18, 2008, effective October 30, 2008, 38 Pa.B. 5423; rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620. Immediately preceding text appears at serial pages (338880) to (338881).

History

• Source: The provisions of this Rule 401 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.

225 Pa. Code Rule 409 Offers to Pay Medical and Similar Expenses. {#sec-rule-409 omnilex-key=us-pa-regs-official--title-225--Rule 409}

Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury.

This rule is identical to F.R.E. 409.

As to the admissibility of a benevolent gesture made by a health care provider, et al., see the Benevolent Gesture Medical Professional Liability Act, Act of October 25, 2013, P. L. 665, 35 P. S. § § 10228.1—3.3.

Official Note

Adopted May 8, 1998, effective October 1, 1998; Comment revised December 30, 2005, effective February 1, 2006; rescinded and replaced January 17, 2013, effective March 18, 2013; Comment revised July 30, 2015, effective October 1, 2015.

Committee Explanatory Reports:

Final Report explaining the December 30, 2005 revision of the Comment published with the Court’s Order at 36 Pa.B. 384 (January 28, 2006).

Final Report explaining the January 17, 2013 rescission and replacement published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013).

Final Report explaining the July 30, 2015 revision of the Comment published with the Court’s Order at 45 Pa.B. 4759 (August 15, 2015).

The provisions of this Rule 409 amended December 30, 2005, effective February 1, 2006, 36 Pa.B. 384; rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620; amended July 30, 2015, effective October 1, 2015, 45 Pa.B. 4759. Immediately preceding text appears at serial page (365870).

History

• Source: The provisions of this Rule 401 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.

225 Pa. Code Rule 410 Pleas, Plea Discussions, and Related Statements. {#sec-rule-410 omnilex-key=us-pa-regs-official--title-225--Rule 410}

(a) Prohibited Uses. In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:

(1) a guilty plea that was later withdrawn;

(2) a nolo contendere plea;

(3) a statement made in the course of any proceedings under Rules 311, 313, 409, 414, 424, 550 or 590 of the Pennsylvania Rules of Criminal Proce-dure, Rule 11 of the Federal Rules of Criminal Procedure, or a comparable rule or procedure of another state; or

(4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later withdrawn guilty plea.

(b) Exceptions. The court may admit a statement described in Rule 410(a)(3) or (4):

(1) in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together; or

(2) in a criminal proceeding for perjury, false swearing or unsworn falsification to authorities, if the defendant made the statement under oath, on the record, and with counsel present.

Pa.R.E. 410(a)(3) differs from F.R.E. 410(a)(3) in that it refers to the Pennsylvania proceedings to which the paragraph applies rather than the federal proceedings.

Pa.R.E. 410 does not prohibit the use of a conviction that results from a plea of nolo contendere, as distinct from the plea itself, to impeach in a later proceeding (subject to Pa.R.E. 609) or to establish an element of a charge in a later administrative proceeding. See Commonwealth v. Snyder, 408 Pa. 253, 182 A.2d 495 (1962) (conviction based on nolo contendere plea could be used to impeach witness in later criminal proceeding); Eisenberg v. Commonwealth, Dep’t. of Public Welfare, 512 Pa. 181, 516 A.2d 333 (Pa. 1986) (conviction based on nolo contendere plea permitted to establish element of charge in administrative proceeding).

There is also a statute governing the admissibility of guilty pleas and pleas of nolo contendere in cases charging summary motor vehicle violations when offered in civil cases arising out of the same facts. See 42 Pa.C.S. § 6142 which provides:

(a) General Rule. A plea of guilty or nolo contendere, or a payment of the fine and costs prescribed after any such plea, in any summary proceeding made by any person charged with a violation of Title 75 (relating to vehicles) shall not be admissible as evidence in any civil matter arising out of the same violation or under the same facts or circumstances.

(b) Exception. The provisions of subsection (a) shall not be applicable to administrative or judicial proceedings involving the suspension of a motor vehicle or tractor operating privilege, learner’s permit, or right to apply for a motor vehicle or tractor operating privilege, or the suspension of a certificate of appointment as an official inspection station, or the suspension of a motor vehicle, tractor, or trailer registration.

Pa.R.E. 410(b)(1) is identical to F.R.E. 410(b)(1).

Pa.R.E. 410(b)(2) differs from F.R.E. 410(b)(2) in that ‘‘false statement’’ has been omitted and replaced with ‘‘false swearing’’ and ‘‘unsworn falsification to authorities’’ to correlate with acts defined in the Pennsylvania Crime Code. See 18 Pa.C.S. § § 4903, 4904.

Official Note

Adopted May 8, 1998, effective October 1, 1998; Comment revised March 23, 1999, effective immediately; amended March 10, 2000, effective immediately; amended March 29, 2001, effective April 1, 2001; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

Final Report explaining the March 23, 1999 technical revisions of the Comment published with the Court’s Order at 29 Pa.B. 1714 (April 3, 1999).

Final Report explaining the March 10, 2000 technical amendments updating the rule published with the Court’s Order at 30 Pa.B. 1641 (March 25, 2000).

Final Report explaining the March 29, 2001 amendments published with the Court’s Order at 31 Pa.B. 1995 (April 14, 2001).

Final Report explaining the January 17, 2013 rescission and replacement published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013).

The provisions of this Rule 410 amended March 23, 1999, effective immediately, 29 Pa.B. 1712; amended March 10, 2000, effective immediately, 30 Pa.B. 1639; amended March 29, 2001, effective April 1, 2001, 31 Pa.B. 1993; rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620. Immediately preceding text appears at serial pages (338882) and (276577).

History

• Source: The provisions of this Rule 401 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.

225 Pa. Code Rule 411 Liability Insurance. {#sec-rule-411 omnilex-key=us-pa-regs-official--title-225--Rule 411}

Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice or proving agency, ownership, or control.

This rule is identical to F.R.E. 411.

Official Note

Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

Final Report explaining the January 17, 2013 rescission and replacement published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013).

The provisions of this Rule 411 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620. Immediately preceding text appears at serial pages (276577) to (276578).

History

• Source: The provisions of this Rule 401 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.

225 Pa. Code Rule 412 Sex Offense Cases: The Victim’s Sexual Behavior or Predisposition (Not Adopted). {#sec-rule-412 omnilex-key=us-pa-regs-official--title-225--Rule 412}

Pennsylvania has not adopted a Rule of Evidence comparable to F.R.E. 412. In Pennsylvania this subject is governed by 18 Pa.C.S. § 3104 (the ‘‘Rape Shield Law’’).

18 Pa.C.S. § 3104 provides:

§ 3104. Evidence of victim’s sexual conduct

(a) General rule.—Evidence of specific instances of the alleged victim’s past sexual conduct, opinion evidence of the alleged victim’s past sexual conduct, and reputation evidence of the alleged victim’s past sexual conduct shall not be admissible in prosecutions under this chapter except evidence of the alleged victim’s past sexual conduct with the defendant where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence.

(b) Evidentiary proceedings.—A defendant who proposes to offer evidence of the alleged victim’s past sexual conduct pursuant to subsection (a) shall file a written motion and offer of proof at the time of trial. If, at the time of trial, the court determines that the motion and offer of proof are sufficient on their faces, the court shall order an in camera hearing and shall make findings on the record as to the relevance and admissibility of the proposed evidence pursuant to the standards set forth in subsection (a).

Official Note

Comment rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

Final Report explaining the January 17, 2013 rescission and replacement published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013).

The provisions of this Rule 412 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620. Immediately preceding text appears at serial page (276578).

History

• Source: The provisions of this Rule 401 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.

225 Pa. Code Rule 413 Evidence of Immigration Status. {#sec-rule-413 omnilex-key=us-pa-regs-official--title-225--Rule 413}

(a) Criminal or Delinquency Matters; Evidence Generally Inadmissible. In any criminal or delinquency matter, evidence of a party’s or a witness’s immigration status shall not be admissible unless immigration status is an essential fact to prove an element of, or a defense to, the offense, to show motive, or to show bias or prejudice of a witness pursuant to Rule 607. This paragraph shall not be construed to exclude evidence that would result in the violation of a defendant’s or a juvenile’s constitutional rights.

(b) Civil Matters; Evidence Generally Inadmissible. In any civil matter, evidence of a party’s or a witness’s immigration status shall not be admissible unless immigration status is an essential fact to prove an element of, or a defense to, the action, or to show bias or prejudice of a witness pursuant to Rule 607.

(c) Procedure. Unless a party did not know, and with due diligence could not have known, that evidence of immigration status would be necessary, the following procedure shall apply prior to any such proposed use of immigration status evidence:

(1) The proponent shall file under seal and serve a written pretrial motion containing an offer of proof of the relevancy of the proposed evidence supported by an affidavit.

(2) If the court finds that the offer of proof is sufficient, the court shall order an in camera hearing.

(3) The court may admit evidence of immigration status pursuant to paragraph (a) or paragraph (b) if it finds the evidence is reliable and relevant, and that its probative value outweighs the prejudicial nature of evidence of immigration status.

(d) Voluntary Revelation. This rule shall not prohibit a person, or the person’s attorney, from voluntarily revealing his or her immigration status to the court.

Pa.R.E. 413 has no counterpart in the Federal Rules. This rule is modeled, in part, after Washington Rule of Evidence 413.

In practice, the introduction of immigration status has received heightened consideration in terms of relevancy and prejudice. See, e.g., Commonwealth v. Sanchez, 595 A.2d 617 (Pa. Super. 1991) (reference to defendant as an ‘‘illegal alien’’ was irrelevant and prejudicial). This consideration is warranted to avoid potential intimidation of witnesses for fear of deportation. See, e.g., 8 U.S.C. § 1227 (Deportable Aliens). This rule is intended to limit the admissibility of evidence of immigration status for purposes other than those stated in the rule. See, e.g., Commonwealth v. Philistin, 53 A.3d 1 (Pa. 2012) (discussing admissibility of immigration status for purpose of proving motive). Paragraphs (a) and (b) may serve as a basis for limiting discovery about immigration status.

This rule requires the proponent to seek pretrial approval prior to the introduction of evidence of immigration status. If evidence is admissible, the trial court may consider a cautionary jury instruction to ameliorate its prejudicial effect. See, e.g., Commonwealth v. Hairston, 84 A.3d 657 (Pa. 2014).

Nothing in this rule prohibits a court from unsealing a motion.

The procedure set forth in paragraph (c) is unnecessary for immigration status voluntarily revealed pursuant to paragraph (d). However, all other Rules of Evidence remain applicable. See, e.g., Pa.R.E. 402, 403.

Official Note

Adopted August 11, 2021, effective October 1, 2021.

Committee Explanatory Report:

Final Report explaining the August 11, 2021 adoption of Rule 413 published with the Court’s Order at 51 Pa.B. 6140 (September 25, 2021).

The provisions of this Rule 413 added August 11, 2021, effective October 1, 2021, 51 Pa.B. 6140.

History

• Source: The provisions of this Rule 401 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.

Chapter 5 PRIVILEGES

225 Pa. Code Rule 501 Privileges. {#sec-rule-501 omnilex-key=us-pa-regs-official--title-225--Rule 501}

Privileges as they now exist or may be modified by law shall be unaffected by the adoption of these rules.

Pa.R.E. 501 is similar to F.R.E. 501 in that this rule does not modify existing law.

Official Note

Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

Final Report explaining the January 17, 2013 rescission and replacement published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013).

The provisions of this Rule 501 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620. Immediately preceding text appears at serial page (245755).

History

• Source: The provisions of this Rule 501 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.

225 Pa. Code Rule 502 Attorney-Client Privilege and Work Product; Limitations on Waiver (Not Adopted). {#sec-rule-502 omnilex-key=us-pa-regs-official--title-225--Rule 502}

The provisions of this Rule 502 adopted January 17, 2013, effective in sixty days, 43 Pa.B. 620.

History

• Source: The provisions of this Rule 501 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.

Chapter 6 WITNESSES

225 Pa. Code Rule 601 Competency. {#sec-rule-601 omnilex-key=us-pa-regs-official--title-225--Rule 601}

(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(a). It is consistent, instead, with Pennsylvania statutory law. 42 Pa.C.S. § § 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. § 5922 (persons convicted in a Pennsylvania court of perjury incompetent in civil cases); 42 Pa.C.S. § 5924 (spouses incompetent to testify against each other in civil cases with certain exceptions set out in 42 Pa.C.S. § § 5925, 5926, and 5927); 42 Pa.C.S. § § 5930—5933 and 20 Pa.C.S. § 2209 (‘‘Dead Man’s statutes’’).

Pa.R.E. 601(b) has no counterpart in the Federal Rules. It is consistent with Pennsylvania law concerning the factors for determining competency of a person to testify, including persons with a mental defect and children of tender years. See Commonwealth v. Baker, 466 Pa. 479, 353 A.2d 454 (1976) (standards for determining competency generally); 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).

Pennsylvania case law recognizes two other grounds for incompetency, a child’s ‘‘tainted’’ testimony, and hypnotically refreshed testimony. In Commonwealth v. Delbridge, 578 Pa. 641, 855 A.2d 27 (2003), the Supreme Court reiterated concern for the susceptibility of children to suggestion and fantasy and held that a child witness can be rendered incompetent to testify where unduly suggestive or coercive interview techniques corrupt or ‘‘taint’’ the child’s memory and ability to testify truthfully about that memory. See also Commonwealth v. Judd, 897 A.2d 1224 (Pa. Super. 2006).

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).

The application of the standards in Pa.R.E. 601(b) is a factual question to be resolved by the court as a preliminary question under Rule 104. The party challenging competency bears the burden of proving grounds of incompetency by clear and convincing evidence. Commonwealth v. Delbridge, 578 Pa. at 664, 855 A.2d at 40. In Commonwealth v. Washington, 554 Pa. 559, 722 A.2d 643 (1998), a case involving child witnesses, the Supreme Court announced a per se rule requiring trial courts to conduct competency hearings outside the presence of the jury. Expert testimony has been used when competency under these standards has been an issue. See e.g., Commonwealth v. Baker, 466 Pa. 479, 353 A.2d 454 (1976); Commonwealth v. Gaerttner, 335 Pa. Super. 203, 484 A.2d 92 (1984).

Official Note

Adopted May 8, 1998, effective October 1, 1998; amended November 2, 2007, effective December 14, 2007; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

Final Report explaining the January 17, 2013 rescission and replacement published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013).

The provisions of this Rule 601 amended November 2, 2007, effective December 14, 2007, 37 Pa.B. 6200; rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620. Immediately preceding text appears at serial pages (360807) to (360808).

History

• Source: The provisions of this Rule 601 amended November 2, 2007, effective December 14, 2007, 37 Pa.

225 Pa. Code Rule 602 Need for Personal Knowledge. {#sec-rule-602 omnilex-key=us-pa-regs-official--title-225--Rule 602}

A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness’s own testimony. This rule does not apply to a witness’s expert testimony under Rule 703.

This rule is identical to F.R.E. 602.

Personal or firsthand knowledge is a universal requirement of the law of evidence. See Johnson v. Peoples Cab Co., 386 Pa. 513, 514—15, 126 A.2d 720, 721 (1956) (‘‘The primary object of a trial in our American courts is to bring to the tribunal, which is passing on the dispute involved, those persons who know of their own knowledge the facts to which they testify.’’). Pa.R.E. 602 refers to Pa.R.E. 703 to make clear that there is no conflict with Rule 703, which permits an expert to base an opinion on facts not within the expert’s personal knowledge.

It is implicit in Pa.R.E. 602 that the party calling the witness has the burden of proving personal knowledge. This is consistent with Pennsylvania law. Carney v. Pennsylvania R.R. Co., 428 Pa. 489, 240 A.2d 71 (1968).

Generally speaking, the personal knowledge requirement of Rule 602 is applicable to the declarant of a hearsay statement. See, e.g., Commonwealth v. Pronkoskie, 477 Pa. 132, 383 A.2d 858 (1978) and Carney v. Pennsylvania R.R. Co., 428 Pa. 489, 240 A.2d 71 (1968). However, personal knowledge is not required for an opposing party’s statement under Pa.R.E. 803(25). See Salvitti v. Throppe, 343 Pa. 642, 23 A.2d 445 (1942); Carswell v. SEPTA, 259 Pa. Super. 167, 393 A.2d 770 (1978). In addition, Pa.R.E. 804(b)(4) explicitly dispenses with the need for personal knowledge for statements of personal or family history, and Pa.R.E. 803(19), (20) and (21) impliedly do away with the personal knowledge requirement by permitting testimony as to reputation to prove personal or family history, boundaries or general history, and a person’s character.

Official Note

Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

Final Report explaining the January 17, 2013 rescission and replacement published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013).

The provisions of this Rule 602 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620. Immediately preceding text appears at serial pages (360808) to (360809).

History

• Source: The provisions of this Rule 601 amended November 2, 2007, effective December 14, 2007, 37 Pa.

225 Pa. Code Rule 603 Oath or Affirmation to Testify Truthfully. {#sec-rule-603 omnilex-key=us-pa-regs-official--title-225--Rule 603}

Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness’s conscience.

This rule is identical to F.R.E. 603.

Official Note

Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

Final Report explaining the January 17, 2013 rescission and replacement published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013).

The provisions of this Rule 603 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620. Immediately preceding text appears at serial page (360809).

History

• Source: The provisions of this Rule 601 amended November 2, 2007, effective December 14, 2007, 37 Pa.

225 Pa. Code Rule 604 Interpreter. {#sec-rule-604 omnilex-key=us-pa-regs-official--title-225--Rule 604}

An interpreter must be qualified and must give an oath or affirmation to make a true translation.

In 2006, legislation was enacted pertaining to the certification, appointment, and use of interpreters in judicial and administrative proceedings for persons having limited proficiency with the English language and persons who are deaf. See 42 Pa.C.S. § § 4401—4438; 2 Pa.C.S. § § 561—588. Pursuant to this legislation, the Administrative Office of the Pennsylvania Courts (‘‘AOPC’’) has implemented an interpreter program for judicial proceedings. See 204 Pa. Code § § 221.101—.407. Information on the court interpreter program and a roster of court interpreters may be obtained from the AOPC web site at www.pacourts.us/t/aopc/courtinterpreterprog.

Official Note

Adopted May 8, 1998, effective October 1, 1998; Comment revised March 29, 2001, effective April 1, 2001; amended and Comment revised March 21, 2012, effective in 30 days; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

Final Report explaining the March 29, 2001 revision of the Comment published with the Court’s Order at 31 Pa.B. 1995 (April 14, 2001).

Final Report explaining the January 17, 2013 rescission and replacement published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013).

The provisions of this Rule 604 amended March 29, 2001, effective April 1, 2001, 31 Pa.B. 1993; amended March 21, 2012, effective in thirty days, 42 Pa.B. 1858; rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620. Immediately preceding text appears at serial pages (360809) to (360810).

History

• Source: The provisions of this Rule 601 amended November 2, 2007, effective December 14, 2007, 37 Pa.

225 Pa. Code Rule 605 Judge’s Competency as a Witness. {#sec-rule-605 omnilex-key=us-pa-regs-official--title-225--Rule 605}

The presiding judge may not testify as a witness at the trial or other proceeding.

This rule differs from the first sentence of F.R.E. 605 with the inclusion of ‘‘or other proceeding.’’ Pa.R.E. 605 makes a judge absolutely incompetent to be a witness on any matter in any proceeding at which the judge presides. Cf. Municipal Publications, Inc. v. Court of Common Pleas, 489 A.2d 1286 (Pa. 1985) (applying former Canon 3C of the Pennsylvania Code of Judicial Conduct, and holding that at a hearing on a motion to recuse a judge, the judge himself could not testify on the issues raised in the motion and continue to preside at the hearing); see also Rule 2.11 of the Code of Judicial Conduct and the Rules Governing Standards of Conduct of Magisterial District Judges.

The second sentence of F.R.E. 605 which provides, ‘‘A party need not object to preserve the issue,’’ is not adopted. This is consistent with Pa.R.E. 103(a), which provides that error may not be predicated on a ruling admitting evidence in the absence of a timely objection, motion to strike, or motion in limine. Of course, the court should permit the making of the objection out of the presence of the jury. See Pa.R.E. 103(d).

Official Note

Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced January 17, 2013, effective March 18, 2013; amended April 29, 2016, effective immediately.

Committee Explanatory Reports:

Final Report explaining the January 17, 2013 rescission and replacement published with the Court’s Order at 43 Pa.B. 620 (February 2, 2013).

Final Report explaining the April 29, 2016 amendment published with the Court’s Order at 46 Pa.B. 2409 (May 14, 2016).

The provisions of this Rule 605 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620; amended April 29, 2016, effective immediately, 46 Pa.B. 2409. Immediately preceding text appears at serial pages (365880) and (365881).

History

• Source: The provisions of this Rule 601 amended November 2, 2007, effective December 14, 2007, 37 Pa.

225 Pa. Code Rule 606 Juror’s Competency as a Witness. {#sec-rule-606 omnilex-key=us-pa-regs-official--title-225--Rule 606}

(a) At the Trial. A juror may not testify as a witness before the other jurors at the trial. If a juror is called to testify, the court must give a party an opportunity to object outside the jury’s presence.

(b) During an Inquiry into the Validity of a Verdict

(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.

(2) Exceptions. A juror may testify about whether:

(A) prejudicial information not of record and beyond common knowledge and experience was improperly brought to the jury’s attention; or

(B) an outside influence was improperly brought to bear on any juror.

Pa.R.E. 606(a) is identical to F.R.E. 606(a). Note that this paragraph bars a juror from testifying ‘‘before the other jurors at the trial.’’ That phrase indicates that a juror may testify outside the presence of the rest of the jury on matters occurring during the course of the trial. See, e.g., Commonwealth v. Santiago, 456 Pa. 265, 318 A.2d 737 (1974) (jurors permitted to testify at hearing in chambers during trial on question of whether they received improper prejudicial information).

Pa.R.E. 606(b) differs from F.R.E. 606(b). First, the words, ‘‘extraneous prejudicial information’’ in F.R.E. 606(b)(2)(A) have been replaced by the phrase ‘‘prejudicial information not of record and beyond common knowledge and experience.’’ This makes clear that the exception is directed at evidence brought before the jury which was not presented during the trial, and which was not tested by the processes of the adversary system and subjected to judicial screening for a determination of admissibility. The qualification of ‘‘common knowledge and experience’’ is a recognition that all jurors bring with them some common facts of life.

Second, the word ‘‘indictment’’ has been omitted because challenges to indicting grand juries and jurors are the subject of Pa.R.Crim.P. 556.4.

Third, Pa.R.E. 606(b)(2) does not contain the third exception to juror incompetency that appears in F.R.E. 606(b)(2)(C)—permitting juror testimony about whether there was a mistake in entering the verdict onto the verdict form. Pennsylvania law deals with possible mistakes in the verdict form by permitting the polling of the jury prior to the recording of the verdict. If there is no concurrence, the jury is directed to retire for further deliberations. See Pa.R.Crim.P. 648(G); City of Pittsburgh v. Dinardo, 410 Pa. 376, 189 A.2d 886 (1963); Barefoot v. Penn Central Transportation Co., 226 Pa. Super. 558, 323 A.2d 271 (1974).

Pa.R.E. 606(b) does not purport to set forth the substantive grounds for setting aside verdicts because of an irregularity.

Official Note

Adopted May 8, 1998, effective October 1, 1998; Comment revised September 17, 2007, October 17, 2007; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

Final Report explaining the September 17, 2007 revision of the Comment published with the Court’s Order at 37 Pa.B. 5247 (September 29, 2007).

Final Report explaining the January 17, 2013 rescission and replacement published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013).

The provisions of this Rule 606 amended September 17, 2007, effective October 17, 2007, 37 Pa.B. 5247; rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620. Immediately preceding text appears at serial pages (330287) to (330288).

History

• Source: The provisions of this Rule 601 amended November 2, 2007, effective December 14, 2007, 37 Pa.

225 Pa. Code Rule 607 Who May Impeach a Witness, Evidence to Impeach a Witness. {#sec-rule-607 omnilex-key=us-pa-regs-official--title-225--Rule 607}

(a) Who May Impeach a Witness. Any party, including the party that called the witness, may attack the witness’s credibility.

(b) Evidence to Impeach a Witness. The credibility of a witness may be impeached by any evidence relevant to that issue, except as otherwise provided by statute or these rules.

Pa.R.E. 607(a) is identical to F.R.E. 607. It abolishes the common law rule that prohibited a party from impeaching a witness called by that party.

The Federal Rules have no provision similar to Pa.R.E. 607(b). Pa.R.E. 607(b) applies the test for relevant evidence of Pa.R.E. 401 to evidence offered to impeach the credibility of a witness. As is the case under Pa.R.E. 402, there are limits on the admissibility of evidence relevant to the credibility of a witness imposed by these rules. For example, Pa.R.E. 403 excludes relevant evidence if its probative value is outweighed by danger of unfair prejudice, etc., and there are specific limitations on impeachment imposed by Rules 608, 609 and 610. There are statutory limitations such as 18 Pa.C.S. § 3104 (Rape Shield Law).

Pa.R.E. 607(b), however, is not curtailed by 42 Pa.C.S. § 5918, which prohibits, with certain exceptions, the questioning of a defendant who testifies in a criminal case for the purpose of showing that the defendant has committed, been convicted of or charged with another offense or that the defendant has a bad character or reputation. In Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973), this statute was interpreted to apply only to cross-examination. Hence, it affects only the timing and method of impeachment of a defendant; it does not bar the impeachment entirely.

Official Note

Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

Final Report explaining the January 17, 2013 rescission and replacement published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013).

The provisions of this Rule 607 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620. Immediately preceding text appears at serial pages (330288) and (297583).

History

• Source: The provisions of this Rule 601 amended November 2, 2007, effective December 14, 2007, 37 Pa.

225 Pa. Code Rule 608 A Witness’s Character for Truthfulness or Untruthfulness. {#sec-rule-608 omnilex-key=us-pa-regs-official--title-225--Rule 608}

(a) Reputation Evidence. A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked. Opinion testimony about the witness’s character for truthfulness or untruthfulness is not admissible.

(b) Specific Instances of Conduct. Except as provided in Rule 609 (relating to evidence of conviction of crime),

(1) the character of a witness for truthfulness may not be attacked or supported by cross-examination or extrinsic evidence concerning specific instances of the witness’ conduct; however,

(2) in the discretion of the court, the credibility of a witness who testifies as to the reputation of another witness for truthfulness or untruthfulness may be attacked by cross-examination concerning specific instances of conduct (not including arrests) of the other witness, if they are probative of truthfulness or untruthfulness; but extrinsic evidence thereof is not admissible.

Pa.R.E. 608(a) differs from F.R.E. 608(a) in that the Federal Rule permits character for truthfulness or untruthfulness to be attacked or supported by testimony about the witness’s reputation or by opinion testimony. Under Pa.R.E. 608(a), opinion testimony is not admissible. This approach is consistent with Pennsylvania law. See Commonwealth v. Lopinson, 427 Pa. 284, 234 A.2d 552 (1967), vacated on other grounds, 392 U.S. 647 (1968). Compare Pa.R.E. 405(a).

Pa.R.E. 608(b)(1) differs from F.R.E. 608(b). Pa.R.E. 608(b)(1) prohibits the use of evidence of specific instances of conduct to support or attack credibility. This is consistent with Pennsylvania law. See Commonwealth v. Cragle, 281 Pa. Super. 434, 422 A.2d 547 (1980). F.R.E. 608(b)(1) prohibits the use of extrinsic evidence for this purpose, but permits cross-examination of a witness about specific instances of conduct reflecting on the witness’s credibility within the court’s discretion. Both the Pennsylvania and the Federal Rule refer the issue of attacking a witness’s credibility with evidence of prior convictions to Rule 609.

Pa.R.E. 608(b)(2) is similar to F.R.E. 608(b); it permits a witness who has testified to another witness’s character for truthfulness to be cross-examined, about specific instances of conduct of the principal witness, in the discretion of the court. Pa.R.E. 608(b)(2) makes it clear that although the cross-examination concerns the specific acts of the principal witness, that evidence affects the credibility of the character witness only. This is in accord with Pennsylvania law. See Commonwealth v. Peterkin, 511 Pa. 299, 513 A.2d 373 (1986); Commonwealth v. Adams, 426 Pa. Super. 332, 626 A.2d 1231 (1993). In addition, Pa.R.E. 608(b)(2) excludes the use of arrests; this, too, is consistent with Pennsylvania law. See Commonwealth v. Scott, 496 Pa. 188, 436 A.2d 607 (1981). Because cross-examination concerning specific instances of conduct is subject to abuse, the cross-examination is not automatic; rather, its use is specifically placed in the discretion of the court, and like all other relevant evidence, it is subject to the balancing test of Pa.R.E. 403. Moreover, the court should take care that the cross-examiner has a reasonable basis for the questions asked. See Adams, supra.

Finally, the last paragraph of F.R.E. 608(b), which provides that the giving of testimony by an accused or any other witness is not a waiver of the privilege against self-incrimination when the examination concerns matters relating only to credibility, is not adopted.

Official Note

Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

Final Report explaining the January 17, 2013 rescission and replacement published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013).

The provisions of this Rule 608 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620. Immediately preceding text appears at serial pages (276583) to (276584).

History

• Source: The provisions of this Rule 601 amended November 2, 2007, effective December 14, 2007, 37 Pa.

225 Pa. Code Rule 609 Impeachment by Evidence of a Criminal Conviction. {#sec-rule-609 omnilex-key=us-pa-regs-official--title-225--Rule 609}

(a) In General. For the purpose of attacking the credibility of any witness, evidence that the witness has been convicted of a crime, whether by verdict or by plea of guilty or nolo contendere, must be admitted if it involved dishonesty or false statement.

(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:

(1) its probative value substantially outweighs its prejudicial effect; and

(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.

(c) Effect of Pardon or Other Equivalent Procedure. Evidence of a conviction is not admissible under this rule if the conviction has been the subject of one of the following:

(1) a pardon or other equivalent procedure based on a specific finding of innocence; or

(2) a pardon or other equivalent procedure based on a specific finding of rehabilitation of the person convicted, and that person has not been convicted of any subsequent crime.

(d) Juvenile Adjudications. In a criminal case only, evidence of the adjudication of delinquency for an offense under the Juvenile Act, 42 Pa.C.S. § § 6301 et seq., may be used to impeach the credibility of a witness if conviction of the offense would be admissible to attack the credibility of an adult.

(e) Pendency of an Appeal. A conviction that satisfies this rule is admissible even if an appeal is pending. Evidence of the pendency is also admissible.

Pa.R.E. 609(a) differs from F.R.E. 609(a). It is designed to be consistent with Pennsylvania case law. See Commonwealth v. Randall, 515 Pa. 410, 528 A.2d 1326 (1987); Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973). In addition, Pa.R.E. 609(a), unlike F.R.E. 609(a)(2), specifically provides that a conviction based upon a plea of nolo contendere may be used to attack the credibility of a witness; this, too, is consistent with prior Pennsylvania case law. See Commonwealth v. Snyder, 408 Pa. 253, 182 A.2d 495 (1962).

As a general rule, evidence of a jury verdict of guilty or a plea of guilty or nolo contendere may not be used to attack the credibility of a witness before the court has pronounced sentence. See Commonwealth v. Zapata, 455 Pa. 205, 314 A.2d 299 (1974). In addition, evidence of admission to an Accelerated Rehabilitative Disposition program under Pa.R.Crim.P. 310—320 may not be used to attack credibility. See Commonwealth v. Krall, 290 Pa. Super. 1, 434 A.2d 99 (1981).

42 Pa.C.S. § 5918 provides (with certain exceptions) that when a defendant in a criminal case has been called to testify in his or her own behalf he or she cannot be cross-examined about prior convictions. However, evidence of a prior conviction or convictions of a crime or crimes admissible under paragraph (a) may be introduced in rebuttal after the defendant has testified. See Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973).

Pa.R.E. 609(b) differs slightly from F.R.E. 609(b) in that the phrase ‘‘supported by specific facts and circumstances,’’ used in F.R.E. 609(b)(1) with respect to the balancing of probative value and prejudicial effect, has been eliminated. Pa.R.E. 609(b) basically tracks what was said in Commonwealth v. Randall, 515 Pa. 410, 528 A.2d 1326 (1987). Where the date of conviction or last date of confinement is within ten years of the trial, evidence of the conviction of a crimen falsi is per se admissible. If more than ten years have elapsed, the evidence may be used only after written notice and the trial judge’s determination that its probative value substantially outweighs its prejudicial effect. The relevant factors for making this determination are set forth in Bighum, supra, and Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978). For the computation of the ten-year period, where there has been a reincarceration because of a parole violation, see Commonwealth v. Jackson, 526 Pa. 294, 585 A.2d 1001 (1991).

Pa.R.E. 609(c) differs from F.R.E. 609(c) because the Federal Rule includes procedures that are not provided by Pennsylvania law.

Pa.R.E. 609(d) differs from F.R.E. 609(d). Under the latter, evidence of juvenile adjudications is generally inadmissible to impeach credibility, except in criminal cases against a witness other than the accused where the court finds that the evidence is necessary for a fair determination of guilt or innocence. Pa.R.E. 609(d), to be consistent with 42 Pa.C.S. § 6354(b)(4), permits a broader use; a juvenile adjudication of an offense may be used to impeach in a criminal case if conviction of the offense would be admissible if committed by an adult. Juvenile adjudications may also be admissible for other purposes. See 42 Pa.C.S. § 6354(b)(1), (2), and (3).

Pa.R.E. 609(e) is identical to F.R.E. 609(e).

Official Note

Adopted May 8, 1998, effective October 1, 1998; Comment revised March 29, 2001, effective April 1, 2001; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

Final Report explaining the March 29, 2001 revision of the Comment published with the Court’s Order at 31 Pa.B. 1995 (April 14, 2001).

Final Report explaining the January 17, 2013 rescission and replacement published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013).

The provisions of this Rule 609 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620. Immediately preceding text appears at serial pages (276585) to (276586).

History

• Source: The provisions of this Rule 601 amended November 2, 2007, effective December 14, 2007, 37 Pa.

225 Pa. Code Rule 610 Religious Beliefs or Opinions. {#sec-rule-610 omnilex-key=us-pa-regs-official--title-225--Rule 610}

Evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the witness’s credibility.

This rule is identical to F.R.E. 610. It is consistent with 42 Pa.C.S. § 5902, which provides that religious beliefs and opinions shall not affect a person’s ‘‘capacity’’ to testify, that no witness shall be questioned about those beliefs or opinions, and that no evidence shall be heard on those subjects for the purpose of affecting ‘‘competency or credibility.’’

Pa.R.E. 610 bars evidence of a witness’s religious beliefs or opinions only when offered to show that the beliefs or opinions affect the witness’s truthfulness. Pa.R.E. 610 does not bar such evidence introduced for other purposes. See McKim v. Philadelphia Transp. Co., 364 Pa. 237, 72 A.2d 122 (1950); Commonwealth v. Riggins, 374 Pa. Super. 243, 542 A.2d 1004 (1988).

Official Note

Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

Final Report explaining the January 17, 2013 rescission and replacement published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013).

The provisions of this Rule 610 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620. Immediately preceding text appears at serial page (245767).

History

• Source: The provisions of this Rule 601 amended November 2, 2007, effective December 14, 2007, 37 Pa.

225 Pa. Code Rule 611 Mode and Order of Examining Witnesses and Presenting Evidence. {#sec-rule-611 omnilex-key=us-pa-regs-official--title-225--Rule 611}

(a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:

(1) make those procedures effective for determining the truth;

(2) avoid wasting time; and

(3) protect witnesses from harassment or undue embarrassment.

(b) Scope of Cross-Examination. Cross-examination of a witness other than a party in a civil case should be limited to the subject matter of the direct examination and matters affecting credibility, however, the court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination. A party witness in a civil case may be cross-examined by an adverse party on any matter relevant to any issue in the case, including credibility, unless the court, in the interests of justice, limits the cross-examination with respect to matters not testified to on direct examination.

(c) Leading Questions. Leading questions should not be used on direct or redirect examination except as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions:

(1) on cross-examination; and

(2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party. A witness so examined should usually be interrogated by all other parties as to whom the witness is not hostile or adverse as if under redirect examination.

Pa.R.E. 611(a) is identical to F.R.E. 611(a).

Pa.R.E. 611(b) differs from F.R.E. 611(b). F.R.E. 611(b) limits the scope of cross-examination of all witnesses to matters testified to on direct and matters bearing on credibility, unless the court in its discretion allows inquiry into additional matters as if on direct examination. This has been the traditional view in the Federal courts and many State courts. The cross-examiner does not lose the opportunity to develop the evidence because, unless the witness is the accused in a criminal case, the cross-examiner may call the witness as his or her own. Therefore, the introduction of the evidence is merely deferred.

Pa.R.E. 611(b), which is based on Pennsylvania law, applies the traditional view in both civil and criminal cases to all witnesses except a party in a civil case. Under Pa.R.E. 611(b), a party in a civil case may be cross-examined on all relevant issues and matters affecting credibility. See Agate v. Dunleavy, 156 A.2d 530 (Pa. 1959); Greenfield v. Philadelphia, 127 A. 768 (Pa. 1925). However, in both of those cases, the Court stated that the broadened scope of cross-examination of a party in a civil case does not permit a defendant to put in a defense through cross-examination of the plaintiff. The qualifying clause in the last sentence of Pa.R.E. 611(b) is intended to give the trial judge discretion to follow this longstanding rule.

When the accused in a criminal case is the witness, there is an interplay between the limited scope of cross-examination and the accused’s privilege against self-incrimination. When the accused testifies generally as to facts tending to negate or raise doubts about the prosecution’s evidence, he or she has waived the privilege and may not use it to prevent the prosecution from bringing out on cross-examination every circumstance related to those facts. See Commonwealth v. Green, 581 A.2d 544 (Pa. 1990). However, when the accused’s testimony is limited to a narrow topic, there is some authority that the scope of cross-examination may be limited as well. See Commonwealth v. Camm, 277 A.2d 325 (Pa. 1971); Commonwealth v. Ulen, 607 A.2d 779 (Pa. Super. 1992), rev’d on other grounds, 650 A.2d 416 (Pa. 1994).

Pa.R.E. 611(c) differs from F.R.E. 611(c) in that the word ‘‘redirect’’ has been added to the first sentence. This is consistent with Pennsylvania law. See Commonwealth v. Reidenbaugh, 422 A.2d 1126 (Pa. Super. 1980). Additionally, the last sentence of Pa.R.E. 611(c)(2) includes a clause providing that when the court gives permission to use leading questions to a party who has called a hostile witness, an adverse party or one identified with an adverse party, the court should not extend that permission to other parties to whom the witness is not hostile or adverse.

A party who calls a hostile witness, adverse party or one identified with an adverse party may use leading questions because these witnesses are ‘‘unfriendly’’ to the party calling them and there is little risk that they will be susceptible to any suggestions inherent in the questions. The risk of susceptibility to suggestion is present, however, when a party to whom the witness is ‘‘friendly’’ (i.e. to whom the witness is not hostile, an adverse party or one identified with an adverse party) interrogates the witness. The last clause of Pa.R.E. 611(c) restricts the use of leading questions by a party to whom the witness is ‘‘friendly.’’ The word ‘‘usually’’, however, was included to give the court discretion to permit leading questions in an appropriate case. For example, leading questions may be appropriate when the testimony of a witness who was called and examined as a hostile witness by one party substantially harms the interest of another party with whom the witness is neither friendly nor unfriendly.

Official Note

Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced January 17, 2013, effective March 18, 2013; amended September 18, 2014, effective immediately.

Committee Explanatory Reports:

Final Report explaining the January 17, 2013 rescission and replacement published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013).

Final Report explaining the September 18, 2014 amendment published with the Court’s Order at 44 Pa.B. 6226 (October 4, 2014).

The provisions of this Rule 611 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620; amended September 18, 2014, effective immediately, 44 Pa.B. 6225. Immediately preceding text appears at serial pages (365886) to (365887).

History

• Source: The provisions of this Rule 601 amended November 2, 2007, effective December 14, 2007, 37 Pa.

225 Pa. Code Rule 612 Writing or Other Item Used to Refresh a Witness’s Memory. {#sec-rule-612 omnilex-key=us-pa-regs-official--title-225--Rule 612}

(a) Right to Refresh Memory. A witness may use a writing or other item to refresh memory for the purpose of testifying while testifying, or before testifying.

(b) Rights of Adverse Party.

(1) If a witness uses a writing or other item to refresh memory while testifying, an adverse party is entitled to have it produced at the hearing, trial or deposition, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness’s testimony.

(2) If a witness uses a writing or other item to refresh memory before testifying, and the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to have it produced at the hearing, trial or deposition, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness’s testimony.

(c) Rights of Producing Party. If the producing party claims that the writing or other item includes unrelated matter, the court must examine it in camera, delete any unrelated portion, and order that the rest be delivered to the adverse party. Any portion deleted over objection must be preserved for the record.

(d) Failure to Produce or Deliver. If the writing or other item is not produced or is not delivered as ordered, the court may issue any appropriate order. But if the prosecution does not comply in a criminal case, the court must strike the witness’s testimony or—if justice so requires—declare a mistrial, or the court may use contempt procedures.

Pa.R.E. 612 differs from F.R.E. in several ways:

Pa.R.E. 612 applies to writings and other items. This would include such things as photographs, videos, and recordings. F.R.E 612 applies only to writings. The Pennsylvania rule is consistent with prior law. See Commonwealth v. Proctor, 253 Pa. Super. 369, 385 A.2d 383 (1978).

Pa.R.E. 612(a) states that a witness or a party has a right to refresh recollection. This is not expressly provided by F.R.E. 612.

Pa.R.E. 612(b) reorganizes the material that appears in F.R.E. 612(a) and the first sentence of F.R.E. 612(b) for clarity, includes the word ‘‘deposition’’ to clarify that the rule is applicable both at hearings and depositions, and deletes reference to 18 U.S.C. § 3500.

Paragraph (c) differs from the second sentence of F.R.E. 612(b) in that it refers to other items as well as writings.

Paragraph (d) differs from F.R.E. 612(c) in that it adds the phrase ‘‘or the court may use contempt procedures’’.

Official Note

Adopted May 8, 1998, effective October 1, 1998; amended March 23, 1999, effective immediately; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

Final Report explaining the March 23, 1999 technical amendments to paragraph (a) published with the Court’s Order at 29 Pa.B. 1714 (April 3, 1999).

Final Report explaining the January 17, 2013 rescission and replacement published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013).

The provisions of this Rule 612 amended March 23, 1999, effective immediately, 29 Pa.B. 1712; rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620. Immediately preceding text appears at serial pages (254215) to (254216) and (265699).

History

• Source: The provisions of this Rule 601 amended November 2, 2007, effective December 14, 2007, 37 Pa.

225 Pa. Code Rule 613 Witness’s Prior Inconsistent Statement to Impeach; Witness’s Prior Consistent Statement to Rehabilitate. {#sec-rule-613 omnilex-key=us-pa-regs-official--title-225--Rule 613}

(a) Witness’s Prior Inconsistent Statement to Impeach. A witness may be examined concerning a prior inconsistent statement made by the witness to impeach the witness’s credibility. The statement need not be shown or its contents disclosed to the witness at that time, but on request, the statement or contents must be shown or disclosed to an adverse party’s attorney.

(b) Extrinsic Evidence of a Witness’s Prior Inconsistent Statement. Unless the interests of justice otherwise require, extrinsic evidence of a witness’s prior inconsistent statement is admissible only if, during the examination of the witness,

(1) the statement, if written, is shown to, or if not written, its contents are disclosed to, the witness;

(2) the witness is given an opportunity to explain or deny the making of the statement; and

(3) an adverse party is given an opportunity to question the witness.

This subdivision does not apply to an opposing party’s statement as defined in Rule 803(25).

(c) Witness’s Prior Consistent Statement to Rehabilitate. Evidence of a witness’s prior consistent statement is admissible to rehabilitate the witness’s credibility if the opposing party is given an opportunity to cross-examine the witness about the statement and the statement is offered to rebut an express or implied charge of:

(1) fabrication, bias, improper influence or motive, or faulty memory, provided that the statement was made before the alleged fabrication, bias, improper influence or motive, or faulty memory arose; or

(2) having made a prior inconsistent statement, which the witness has denied or explained, and the consistent statement supports the witness’s denial or explanation.

Pa.R.E. 613 differs from F.R.E. 613 to clarify its meaning and to conform to Pennsylvania law.

Pa.R.E. 613(a) and (b) are similar to F.R.E. 613(a) and (b), but the headings and the substance make it clear that the subdivisions are dealing with the use of an inconsistent statement to impeach. The disclosure requirement in subdivision (a) is intended to deter sham allegations of the existence of an inconsistent statement.

Pa.R.E. 613(b) differs from F.R.E. 613(b) in that extrinsic evidence of a prior inconsistent statement is not admissible unless the statement is shown or disclosed to the witness during the witness’s examination. Subdivision (b) is intended to give the witness and the party a fair opportunity to explain or deny the allegation.

To be used for impeachment purposes, an inconsistent statement need not satisfy the requirements of Pa.R.E. 803.1(1)(A)—(C).

F.R.E. 613 does not contain a subdivision (c); it does not deal with rehabilitation of a witness with a prior consistent statement. Pa.R.E. 613(c) gives a party an opportunity to rehabilitate the witness with a prior consistent statement where there has been an attempt to impeach the witness. In most cases, a witness’s prior statement is hearsay, but F.R.E. 801(d)(1)(B) treats some prior consistent statements offered to rebut impeachment as not hearsay.

Pa.R.E. 613(c) is consistent with Pennsylvania law in that the prior consistent statement is admissible, but only to rehabilitate the witness. See Commonwealth v. Hutchinson, 556 A.2d 370 (Pa. 1989) (to rebut charge of recent fabrication); Commonwealth v. Smith, 540 A.2d 246 (Pa. 1988) (to counter alleged corrupt motive); Commonwealth v. Swinson, 626 A.2d 627 (Pa. Super. 1993) (to negate charge of faulty memory); Commonwealth v. McEachin, 537 A.2d 883 (Pa. Super. 1988) (to offset implication of improper influence).

Pa.R.E. 613(c)(2) is arguably an extension of Pennsylvania law, but is based on the premise that, when an attempt has been made to impeach a witness with an alleged prior inconsistent statement, a statement consistent with the witness’s testimony should be admissible to rehabilitate the witness if it supports the witness’s denial or explanation of the alleged inconsistent statement.

The provisions of this Rule 613 amended March 23, 1999, effective immediately, 29 Pa.B. 1712; amended March 10, 2000, effective immediately, 30 Pa.B. 1639; rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620; amended March 1, 2017, effective April 1, 2017, 47 Pa.B. 1623; amended September 4, 2024, effective January 1, 2025, 54 Pa.B. 5726. Immediately preceding text appears at serial pages (386567) to (386568).

History

• Source: The provisions of this Rule 601 amended November 2, 2007, effective December 14, 2007, 37 Pa.

225 Pa. Code Rule 614 Court’s Calling or Examining a Witness. {#sec-rule-614 omnilex-key=us-pa-regs-official--title-225--Rule 614}

(a) Calling. Consistent with its function as an impartial arbiter, the court, with notice to the parties, may call a witness on its own or at a party’s request. Each party is entitled to cross-examine the witness.

(b) Examining. Where the interest of justice so requires, the court may examine a witness regardless of who calls the witness.

(c) Objections. A party may object to the court’s calling or examining a witness when given notice that the witness will be called or when the witness is examined. When requested to do so, the court must give the objecting party an opportunity to make objections out of the presence of the jury.

Pa.R.E. 614(a) and (b) differ from F.R.E. 614(a) and (b) in several respects. The phrase relating to the court’s ‘‘function as an impartial arbiter’’ has been added to Pa.R.E. 614(a), and the clause regarding ‘‘interest of justice’’ has been added in Pa.R.E. 614(b). These additions are consistent with Pennsylvania law. See Commonwealth v. Crews, 429 Pa. 16, 239 A.2d 350 (1968); Commonwealth v. DiPasquale, 424 Pa. 500, 230 A.2d 449 (1967); Commonwealth v. Myma, 278 Pa. 505, 123 A. 486 (1924).

Pa.R.E. 614(a) also differs from F.R.E. 614(a) in that the Pennsylvania Rule requires the court to give notice of its intent to call a witness.

Pa.R.E. 614(c), unlike F.R.E. 614(c), does not permit an objection to the court’s calling or questioning a witness ‘‘at the next available opportunity when the jury is not present.’’ Pa.R.E. 614(c) is consistent with Pa.R.E. 103(a)(1)(A), which requires a ‘‘timely objection.’’ The requirement that the objecting party be given an opportunity make its objection out of the presence of the jury is consistent with Pa.R.E. 103(d).

Official Note

Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

Final Report explaining the January 17, 2013 rescission and replacement published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013).

The provisions of this Rule 614 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620. Immediately preceding text appears at serial page (265702).

History

• Source: The provisions of this Rule 601 amended November 2, 2007, effective December 14, 2007, 37 Pa.

225 Pa. Code Rule 615 Sequestering Witnesses. {#sec-rule-615 omnilex-key=us-pa-regs-official--title-225--Rule 615}

At a party’s request the court may order witnesses sequestered so that they cannot learn of other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize sequestering:

(a) a party who is a natural person;

(b) an officer or employee of a party that is not a natural person (including the Commonwealth) after being designated as the party’s representative by its attorney;

(c) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or

(d) a person authorized by statute or rule to be present.

Pa.R.E. 615 differs from F.R.E. 615 in that the word ‘‘sequestering’’ is used instead of the word ‘‘excluding’’, and the rule is discretionary not mandatory. Both of these are consistent with prior Pennsylvania law. See Commonwealth v. Albrecht, 510 Pa. 603, 511 A.2d 764 (1986). Pa.R.E. 615 uses the term ‘‘learn of’’ rather than the word ‘‘hear.’’ This indicates that the court’s order may prohibit witnesses from using other means of learning of the testimony of other witnesses.

Pa.R.E. 615(b) adds the parenthetical ‘‘(including the Commonwealth).’’

Pa.R.E 615(d) differs from the Federal Rule in that it adds the words ‘‘or rule.’’ This includes persons such as the guardian of a minor, see Pa.R.C.P. No. 2027, and the guardian of an incapacitated person, see Pa.R.C.P. No. 2053.

The trial court has discretion in choosing a remedy for violation of a sequestration order. See Commonwealth v. Smith, 464 Pa. 314, 346 A.2d 757 (1975). Remedies include ordering a mistrial, forbidding the testimony of the offending witness, or an instruction to the jury. Commonwealth v. Scott, 496 Pa. 78, 436 A.2d 161 (1981).

Official Note

Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

Final Report explaining the January 17, 2013 rescission and replacement published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013).

The provisions of this Rule 615 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620. Immediately preceding text appears at serial page (254221).

History

• Source: The provisions of this Rule 601 amended November 2, 2007, effective December 14, 2007, 37 Pa.

Chapter 7 OPINIONS AND EXPERT TESTIMONY

225 Pa. Code Rule 702 Testimony by Expert Witnesses. {#sec-rule-702 omnilex-key=us-pa-regs-official--title-225--Rule 702}

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge is beyond that possessed by the average layperson;

(b) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; and

(c) the expert’s methodology is generally accepted in the relevant field.

Pa.R.E. 702(a) and (b) differ from F.R.E. 702 in that Pa.R.E. 702(a) and (b) impose the requirement that the expert’s scientific, technical, or other specialized knowledge is admissible only if it is beyond that possessed by the average layperson. This is consistent with prior Pennsylvania law. See Commonwealth v. O’Searo, 466 Pa. 224, 229, 352 A.2d 30, 32 (1976).

Pa.R.E. 702(c) differs from F.R.E. 702 in that it reflects Pennsylvania’s adoption of the standard in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The rule applies the ‘‘general acceptance’’ test for the admissibility of scientific, technical, or other specialized knowledge testimony. This is consistent with prior Pennsylvania law. See Grady v. Frito-Lay, Inc., 576 Pa. 546, 839 A.2d 1038 (2003). The rule rejects the federal test derived from Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

Pa.R.E. 702 does not change the Pennsylvania rule for qualifying a witness to testify as an expert. In Miller v. Brass Rail Tavern, Inc., 541 Pa. 474, 480-81, 664 A.2d 525, 528 (1995), the Supreme Court stated:

The test to be applied when qualifying a witness to testify as an expert witness is whether the witness has any reasonable pretension to specialized knowledge on the subject under investigation. If he does, he may testify and the weight to be given to such testimony is for the trier of fact to determine.

Pa.R.E. 702 does not change the requirement that an expert’s opinion must be expressed with reasonable certainty. See McMahon v. Young, 442 Pa. 484, 276 A.2d 534 (1971).

Pa.R.E. 702 states that an expert may testify in the form of an ‘‘opinion or otherwise.’’ Much of the literature assumes that experts testify only in the form of an opinion. The language ‘‘or otherwise’’ reflects the fact that experts frequently are called upon to educate the trier of fact about the scientific or technical principles relevant to the case.

Official Note

Adopted May 8, 1998, effective October 1, 1998; Comment revised April 1, 2004, effective May 10, 2004; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

Final Report explaining the January 17, 2013 rescission and replacement published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013).

The provisions of this Rule 702 amended April 1, 2004, effective May 10, 2004, 34 Pa.B. 2065; rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620. Immediately preceeding text appears at serial pages (303515) to (303516).

History

• Source: The provisions of this Rule 701 amended November 2, 2001, effective January 1, 2002, 31 Pa.

225 Pa. Code Rule 703 Bases of an Expert’s Opinion Testimony. {#sec-rule-703 omnilex-key=us-pa-regs-official--title-225--Rule 703}

An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted.

This rule is identical to the first two sentences of F.R.E. 703. It does not include the third sentence of the Federal Rule that provides that the facts and data that are the bases for the expert’s opinion are not admissible unless their probative value substantially outweighs their prejudicial effect. This is inconsistent with Pennsylvania law which requires that facts and data that are the bases for the expert’s opinion must be disclosed to the trier of fact. See Pa.R.E. 705.

Pa.R.E. 703 requires that the facts or data upon which an expert witness bases an opinion be ‘‘of a type reasonably relied upon by experts in the particular field. . . .’’ Whether the facts or data satisfy this requirement is a preliminary question to be determined by the trial court under Pa.R.E. 104(a). If an expert witness relies on novel scientific evidence, Pa.R.C.P. No. 207.1 sets forth the procedure for objecting, by pretrial motion, on the ground that the testimony is inadmissible under Pa.R.E. 702, or Pa.R.E. 703, or both.

When an expert testifies about the underlying facts and data that support the expert’s opinion and the evidence would be otherwise inadmissible, the trial judge upon request must, or on the judge’s own initiative may, instruct the jury to consider the facts and data only to explain the basis for the expert’s opinion, and not as substantive evidence.

An expert witness cannot be a mere conduit for the opinion of another. An expert witness may not relate the opinion of a non-testifying expert unless the witness has reasonably relied upon it in forming the witness’s own opinion. See, e.g., Foster v. McKeesport Hospital, 260 Pa. Super. 485, 394 A.2d 1031 (1978); Allen v. Kaplan, 439 Pa. Super. 263, 653 A.2d 1249 (1995).

Official Note

Adopted May 8, 1998, effective October 1, 1998; Comment revised September 11, 2003, effective September 30, 2003; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

Final Report explaining the September 11, 2003 revision of the Comment published with the Court’s Order at 33 Pa.B. 4784 (September 27, 2003).

Final Report explaining the January 17, 2013 rescission and replacement published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013).

The provisions of this Rule 703 amended September 11, 2003, effective September 30, 2003, 33 Pa.B. 4784; rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620. Immediately preceding text appears at serial pages (303516) and (299643).

History

• Source: The provisions of this Rule 701 amended November 2, 2001, effective January 1, 2002, 31 Pa.

225 Pa. Code Rule 704 Opinion on an Ultimate Issue. {#sec-rule-704 omnilex-key=us-pa-regs-official--title-225--Rule 704}

An opinion is not objectionable just because it embraces an ultimate issue.

Pa.R.E. 704 is identical to F.R.E. 704(a).

F.R.E. 704(b) is not adopted. The Federal Rule prohibits an expert witness in a criminal case from stating an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or a defense. This is inconsistent with Pennsylvania law. Commonwealth v. Walzack, 468 Pa. 210, 360 A.2d 914 (1976).

Official Note

Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

Final Report explaining the January 17, 2013 rescission and replacement published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013).

The provisions of this Rule 704 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620. Immediately preceding text appears at serial pages (299643) to (299644).

History

• Source: The provisions of this Rule 701 amended November 2, 2001, effective January 1, 2002, 31 Pa.

225 Pa. Code Rule 705 Disclosing the Facts or Data Underlying an Expert’s Opinion. {#sec-rule-705 omnilex-key=us-pa-regs-official--title-225--Rule 705}

If an expert states an opinion the expert must state the facts or data on which the opinion is based.

The text and substance of Pa.R.E. 705 differ significantly from F.R.E. 705. The Federal Rule generally does not require an expert witness to disclose the facts upon which an opinion is based prior to expressing the opinion. Instead, the cross-examiner bears the burden of probing the basis of the opinion. Pennsylvania does not follow the Federal Rule. See Kozak v. Struth, 515 Pa. 554, 560, 531 A.2d 420, 423 (1987) (declining to adopt F.R.E. 705, the Court reasoned that ‘‘requiring the proponent of an expert opinion to clarify for the jury the assumptions upon which the opinion is based avoids planting in the juror’s mind a general statement likely to remain with him in the jury room when the disputed details are lost.’’) Relying on cross-examination to illuminate the underlying assumption, as F.R.E. 705 does, may further confuse jurors already struggling to follow complex testimony. Id.

Accordingly, Kozak requires disclosure of the facts used by the expert in forming an opinion. The disclosure can be accomplished in several ways. One way is to ask the expert to assume the truth of testimony the expert has heard or read. Kroeger Co. v. W.C.A.B., 101 Pa. Cmwlth. 629, 516 A.2d 1335 (1986); Tobash v. Jones, 419 Pa. 205, 213 A.2d 588 (1965). Another option is to pose a hypothetical question to the expert. Dietrich v. J.I. Case Co., 390 Pa. Super. 475, 568 A.2d 1272 (1990); Hussey v. May Department Stores, Inc., 238 Pa. Super. 431, 357 A.2d 635 (1976).

When an expert testifies about the underlying facts and data that support the expert’s opinion and the evidence would be otherwise inadmissible, the trial judge upon request must, or on the judge’s own initiative may, instruct the jury to consider the facts and data only to explain the basis for the expert’s opinion, and not as substantive evidence.

Official Note

Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

Final Report explaining the January 17, 2013 rescission and replacement published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013).

The provisions of this Rule 705 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620. Immediately preceding text appears at serial page (299644).

History

• Source: The provisions of this Rule 701 amended November 2, 2001, effective January 1, 2002, 31 Pa.

225 Pa. Code Rule 706 Court-Appointed Expert Witnesses. {#sec-rule-706 omnilex-key=us-pa-regs-official--title-225--Rule 706}

Where the court has appointed an expert witness, the witness appointed must advise the parties of the witness’s findings, if any. The witness may be called to testify by the court or any party. The witness shall be subject to cross-examination by any party, including a party calling the witness. In civil cases, the witness’s deposition may be taken by any party.

Pa.R.E. 706 differs from F.R.E. 706. Unlike the Federal Rule, Pa.R.E. 706 does not affect the scope of the trial court’s power to appoint experts. Pa.R.E. 706 provides only the procedures for obtaining the testimony of experts after the court has appointed them.

In Commonwealth v. Correa, 437 Pa. Super. 1, 648 A.2d 1199 (1994), abrogated on other grounds by Commonwealth v. Weston, 561 Pa. 199, 749 A.2d 458 (2000), the Superior Court held that the trial court had inherent power to appoint an expert. 23 Pa.C.S. § 5104 provides for the appointment of experts to conduct blood tests in paternity proceedings.

See also Pa.R.E. 614 (Court’s Calling or Examining a Witness).

Official Note

Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

Final Report explaining the January 17, 2013 rescission and replacement published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013).

The provisions of this Rule 706 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620. Immediately preceding text appears at serial pages (299644) to (299645).

History

• Source: The provisions of this Rule 701 amended November 2, 2001, effective January 1, 2002, 31 Pa.

Chapter 8 HEARSAY

225 Pa. Code Rule 801 Definitions That Apply to This Article. {#sec-rule-801 omnilex-key=us-pa-regs-official--title-225--Rule 801}

(a) Statement. ‘‘Statement’’ means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.

(b) Declarant. ‘‘Declarant’’ means the person who made the statement.

(c) Hearsay. ‘‘Hearsay’’ means a statement that

(1) the declarant does not make while testifying at the current trial or hearing; and

(2) a party offers in evidence to prove the truth of the matter asserted in the statement.

Pa.R.E. 801(a), (b) and (c) are identical to F.R.E. 801(a), (b) and (c). The matters set out in F.R.E. 801(d)(1) (A Declarant-Witness’s Prior Statement) are covered in Pa.R.E. 803.1(1) and (2) and Pa.R.E. 613(c). The matters set out in F.R.E. 801(d)(2) (An Opposing Party’s Statement) are covered in Pa.R.E. 803(25).

Communications that are not assertions are not hearsay. These would include questions, greetings, expressions of gratitude, exclamations, offers, instructions, warnings, etc.

Pa.R.E. 801(c), which defines hearsay, is consistent with Pennsylvania law, although the Pennsylvania cases have usually defined hearsay as an ‘‘out-of-court statement offered to prove the truth of the matter asserted’’ instead of the definition used Pa.R.E. 801(c). See Heddings v. Steele, 514 Pa. 569, 526 A.2d 349 (1987). The adoption of the language of the Federal Rule is not intended to change existing law.

A statement is hearsay only if it is offered to prove the truth of the matter asserted in the statement. There are many situations in which evidence of a statement is offered for a purpose other than to prove the truth of the matter asserted.

Sometimes a statement has direct legal significance, whether or not it is true. For example, one or more statements may constitute an offer, an acceptance, a promise, a guarantee, a notice, a representation, a misrepresentation, defamation, perjury, compliance with a contractual or statutory obligation, etc.

More often, a statement, whether or not it is true, constitutes circumstantial evidence from which the trier of fact may infer, alone or in combination with other evidence, the existence or non-existence of a fact in issue. For example, a declarant’s statement may imply his or her particular state of mind, or it may imply that a particular state of mind ensued in the recipient. Evidence of a statement, particularly if it is proven untrue by other evidence, may imply the existence of a conspiracy, or fraud. Evidence of a statement made by a witness, if inconsistent with the witness’s testimony, may imply that the witness is an unreliable historian. Conversely, evidence of a statement made by a witness that is consistent with the witness’s testimony may imply the opposite. See Pa.R.E. 613(c).

Official Note

Adopted May 8, 1998, effective October 1, 1998; Comment revised March 29, 2001, effective April 1, 2001; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

Final Report explaining the March 29, 2001 revision of the Comment published with the Court’s Order at 31 Pa.B. 1995 (April 14, 2001).

Final Report explaining the January 17, 2013 rescission and replacement published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013).

The provisions of this Rule 801 amended March 29, 2001, effective April 1, 2001, 31 Pa.B. 1993; rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620. Immediately preceding text appears at serial pages (308922) to (308923) and (276587).

History

• Source: The provisions of this Introductory Comment amended December 17, 2004, effective January 31, 2005, 35 Pa.

225 Pa. Code Rule 802 The Rule Against Hearsay. {#sec-rule-802 omnilex-key=us-pa-regs-official--title-225--Rule 802}

Hearsay is not admissible except as provided by these rules, by other rules prescribed by the Pennsylvania Supreme Court, or by statute.

Pa.R.E. 802 differs from F.R.E. 802 in that it refers to other rules prescribed by the Pennsylvania Supreme Court, and to statutes in general, rather than federal statutes.

Often, hearsay will be admissible under an exception provided by these rules. The organization of the Pennsylvania Rules of Evidence generally follows the organization of the Federal Rules of Evidence, but the Pennsylvania Rules’ organization of the exceptions to the hearsay rule is somewhat different than the federal organization. There are three rules which contain the exceptions: Pa.R.E. 803 Exceptions to the Rule Against Hearsay—Regardless of Whether the Declarant is Available as a Witness, Pa.R.E. 803.1 Exceptions to the Rule Against Hearsay—Testimony of Declarant Necessary, and Pa.R.E. 804 Exceptions to the Rule Against Hearsay—When the Declarant is Unavailable as a Witness.

On occasion, hearsay may be admitted pursuant to another rule promulgated by the Pennsylvania Supreme Court. For example, in civil cases, all or part of a deposition may be admitted pursuant to Pa.R.C.P. No. 4020, or a video deposition of an expert witness may be admitted pursuant to Pa.R.C.P. No. 4017.1(g). In preliminary hearings in criminal cases, the court may consider hearsay evidence pursuant to Pa.R.Crim.P. 542(E) and 1003(E). In criminal trials, Pa.R.Crim.P. 574 provides a procedure for the admission of forensic laboratory reports supported by a certification.

Also, hearsay may be admitted pursuant to a state statute. Examples include:

1. A public record may be admitted pursuant to 42 Pa.C.S. § 6104. See Comment to Pa.R.E. 803(8).

2. A record of vital statistics may be admitted pursuant to 35 P. S. § 450.810. See Comment to Pa.R.E. 803(9) (Not Adopted).

3. In a civil case, a deposition of a licensed physician may be admitted pursuant to 42 Pa.C.S. § 5936.

4. In a criminal case, a deposition of a witness may be admitted pursuant to 42 Pa.C.S. § 5919.

5. In a criminal or civil case, an out-of-court statement of a witness 12 years of age or younger, describing certain kinds of sexual abuse, may be admitted pursuant to 42 Pa.C.S. § 5985.1.

6. In a dependency hearing, an out-of-court statement of a witness under 16 years of age, describing certain types of sexual abuse, may be admitted pursuant to 42 Pa.C.S. § 5986.

7. In a prosecution for speeding under the Pennsylvania Vehicle Code, a certificate of accuracy of an electronic speed timing device (radar) from a calibration and testing station appointed by the Pennsylvania Department of Motor Vehicles may be admitted pursuant to 75 Pa.C.S. § 3368(d).

On rare occasion, hearsay may be admitted pursuant to a federal statute. For example, when a person brings a civil action, in either federal or state court, against a common carrier to enforce an order of the Interstate Commerce Commission requiring the payment of damages, the findings and order of the Commission may be introduced as evidence of the facts stated in them. 49 U.S.C. § 11704(d)(1).

Hearsay Exceptions and the Right of Confrontationof a Defendant in a Criminal Case

The exceptions to the hearsay rule in Rules 803, 803.1, and 804 and the exceptions provided by other rules or by statute are applicable both in civil and criminal cases. In a criminal case, however, hearsay that is offered against a defendant under an exception from the hearsay rule provided by these rules or by another rule or statute may sometimes be excluded because its admission would violate the defendant’s right ‘‘to be confronted with the witnesses against him’’ under the Sixth Amendment of the United States Constitution, or ‘‘to be confronted with the witnesses against him’’ under Article I, § 9 of the Pennsylvania Constitution.

The relationship between the hearsay rule and the Confrontation Clause in the Sixth Amendment was explained by the United States Supreme Court in California v. Green, 399 U.S. 149, 155-56 (1970):

While it may readily be conceded that hearsay rules and the Confrontation Clause are generally designed to protect similar values, it is quite a different thing to suggest that the overlap is complete and that the Confrontation Clause is nothing more or less than a codification of the rules of hearsay and their exceptions as they existed historically at common law. Our decisions have never established such a congruence; indeed, we have more than once found a violation of confrontation values even though the statements in issue were admitted under an arguably recognized hearsay exception. . . .

Given the similarity of the values protected, however, the modification of a State’s hearsay rules to create new exceptions for the admission of evidence against a defendant, will often raise questions of compatibility with the defendant’s constitutional right to confrontation.

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court, overruling its prior opinion in Ohio v. Roberts, 448 U.S. 56 (1980), interpreted the Confrontation Clause to prohibit the introduction of ‘‘testimonial’’ hearsay from an unavailable witness against a defendant in a criminal case unless the defendant had an opportunity to confront and cross-examine the declarant, regardless of its exception from the hearsay rule, except, perhaps, if the hearsay qualifies as a dying declaration (Pa.R.E. 804(b)(2)).

In short, when hearsay is offered against a defendant in a criminal case, the defendant may interpose three separate objections: (1) admission of the evidence would violate the hearsay rule, (2) admission of the evidence would violate defendant’s right to confront the witnesses against him under the Sixth Amendment of the United States Constitution, and (3) admission of the evidence would violate defendant’s right ‘‘to be confronted with the witnesses against him’’ under Article I, § 9 of the Pennsylvania Constitution.

Pennsylvania Rule of Criminal Procedure 574 provides a mechanism for the admission of a forensic laboratory report supported by a certification. This Rule provides a defendant an opportunity to exercise the right of confrontation and to object to the report on hearsay grounds. Following pre-trial notice by the prosecution, and in the absence of a demand by defendant for declarant’s live testimony, the Rule permits the admission of a properly certified forensic laboratory report at trial and the accompanying certification at trial. See Pa.R.Crim.P. 574.

Official Note

Adopted May 8, 1998, effective October 1, 1998; Comment revised March 23, 1999, effective immediately; Comment revised March 10, 2000, effective immediately; Comment revised March 29, 2001, effective April 1, 2001; rescinded and replaced January 17, 2013, effective March 18, 2013; Comment revised February 19, 2014, effective April 1, 2014; Comment revised November 9, 2016, effective January 1, 2017.

Committee Explanatory Reports:

Final Report explaining the March 23, 1999 technical revisions to the Comment published with the Court’s Order at 29 Pa.B. 1714 (April 3, 1999).

Final Report explaining the March 10, 2000 changes updating the seventh paragraph of the Comment published with the Court’s Order at 30 Pa.B. 1641 (March 25, 2000).

Final Report explaining the March 29, 2001 revision of the Comment published with the Court’s Order at 31 Pa.B. 1995 (April 14, 2001).

Final Report explaining the January 17, 2013 rescission and replacement published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013).

Final Report explaining the February 19, 2014 revision of the Comment published with the Court’s Order at 44 Pa.B. 1309 (March 8, 2014).

Final Report explaining the November 9, 2016 revision of the Comment published with the Court’s Order at 46 Pa.B. 7438 (November 26, 2016).

The provisions of this Rule 802 amended March 23, 1999, effective immediately, 29 Pa.B. 1712; amended March 24, 2000, effective March 25, 2000, 30 Pa.B. 1639; amended March 29, 2001, effective April 1, 2001, 31 Pa.B. 1993; rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620; amended February 19, 2014, effective April 1, 2014, 44 Pa.B. 1309; amended November 9, 2016, effective January 1, 2017, 46 Pa.B. 7436. Immediately preceding text appears at serial pages (371033) to (371035).

History

• Source: The provisions of this Introductory Comment amended December 17, 2004, effective January 31, 2005, 35 Pa.

225 Pa. Code Rule 803 Exceptions to the Rule Against Hearsay—Regardless of Whether the Declarant Is Available as a Witness. {#sec-rule-803 omnilex-key=us-pa-regs-official--title-225--Rule 803}

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

The provisions of this Rule 803 amended March 23, 1999, effective immediately, 29 Pa.B. 1712; amended March 10, 2000, effective immediately, 30 Pa.B. 1639; amended May 16, 2001, effective July 1, 2001, 31 Pa.B. 2788; amended November 2, 2001, effective January 1, 2002, 31 Pa.B. 6381; rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620; amended October 25, 2018, effective December 1, 2018, 48 Pa.B. 7111; amended November 18, 2021, effective January 1, 2022, 51 Pa.B. 7438. Immediately preceding text appears at serial page (394681).

History

• Source: The provisions of this Introductory Comment amended December 17, 2004, effective January 31, 2005, 35 Pa.

225 Pa. Code Rule 803.1 Exceptions to the Rule Against Hearsay—Testimony of Declarant Necessary. {#sec-rule-803.1 omnilex-key=us-pa-regs-official--title-225--Rule 803.1}

The following statements are not excluded by the rule against hearsay if the declarant testifies and is subject to cross-examination about the prior statement:

A witness must be subject to cross-examination regarding the prior statement. See Commonwealth v. Romero, 722 A.2d 1014, 1017-1018 (Pa. 1999) (witness was not available for cross-examination when witness refused to answer questions about prior statement).

(1) Prior Inconsistent Statement of Declarant-Witness. A prior statement by a declarant-witness that is inconsistent with the declarant-witness’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;

(B) is a writing signed and adopted by the declarant; or

(C) is a verbatim contemporaneous electronic recording of an oral statement.

The Federal Rules treat statements corresponding to Pa.R.E. 803.1(1) and (2) as ‘‘not hearsay’’ and places them in F.R.E. 801(d)(1)(A) and (C). Pennsylvania follows the traditional approach that treats these statements as exceptions to the hearsay rule if the declarant testifies at the trial.

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. Lively, 610 A.2d 7 (Pa. 1992). In Commonwealth v. Wilson, 707 A.2d 1114 (Pa. 1998), the Supreme Court held that to be admissible under this rule an oral statement must be a verbatim contemporaneous recording in electronic, audiotaped, or videotaped form.

An inconsistent statement of a witness that does not qualify as an exception to the hearsay rule may still be introduced to impeach the credibility of the witness. See Pa.R.E. 613.

(2) Prior Statement of Identification by Declarant-Witness. A prior statement by a declarant-witness identifying a person or thing, made after perceiving the person or thing, provided that the declarant-witness testifies to the making of the prior statement.

Pennsylvania treats a statement meeting the requirements of Pa.R.E. 803.1(2) as an exception to the hearsay rule. F.R.E. 801(d)(1)(C) provides that such a statement is not hearsay. This differing organization is consistent with Pennsylvania law.

Pa.R.E. 803.1(2) differs from F.R.E. 801(d)(1)(C) in several respects. It requires the witness to testify to making the identification. This is consistent with Pennsylvania law. See Commonwealth v. Ly, 599 A.2d 613 (Pa. 1991). The Pennsylvania rule includes identification of a thing, in addition to a person.

(3) Recorded Recollection of Declarant-Witness. A memorandum or record made or adopted by a declarant-witness that:

(A) is on a matter the declarant-witness once knew about but now cannot recall well enough to testify fully and accurately;

(B) was made or adopted by the declarant-witness when the matter was fresh in his or her memory; and

(C) the declarant-witness testifies accurately reflects his or her knowledge at the time when made.

If admitted, the memorandum or record may be read into evidence and received as an exhibit but may be shown to the jury only in exceptional circumstances or when offered by an adverse party.

Pa.R.E. 803.1(3) is similar to F.R.E. 803(5) but differs in the following ways:

1. Pennsylvania treats a statement meeting the requirements of Pa.R.E. 803.1(3) as an exception to the hearsay rule in which the testimony of the declarant is necessary. The Federal Rule differs in that recorded recollections ‘‘are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness.’’ F.R.E. 803(5).

2. Pa.R.E. 803.1(3)(C) makes clear that, to qualify a recorded recollection as an exception to the hearsay rule, the witness must testify that the memorandum or record correctly reflects the knowledge that the witness once had. In other words, the witness must vouch for the reliability of the record. The Federal Rule does not ‘‘spell out the method of establishing the initial knowledge or the contemporaneity and accuracy of the record, leaving them to be dealt with as the circumstances of the particular case might indicate.’’ F.R.E. 803, Note of Advisory Committee.

3. Pa.R.E. 803.1(3) allows the memorandum or record to be received as an exhibit and grants the trial judge discretion to show it to the jury in exceptional circumstances, even when not offered by an adverse party. In federal court, ‘‘[i]f admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.’’ F.R.E. 803(5).

Pa.R.E. 803.1(3) is consistent with Pennsylvania law. See Commonwealth v. Cargo, 444 A.2d 639 (Pa. 1982).

(4) Prior Statement by a Declarant-Witness Who Claims an Inability to Remember the Subject Matter of the Statement. A prior statement by a declarant-witness who testifies to an inability to remember the subject matter of the statement, unless the court finds the claimed inability to remember to be credible, and the statement:

(A) was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition;

(B) is a writing signed and adopted by the declarant; or

(C) is a verbatim contemporaneous electronic recording of an oral statement.

Pa.R.E. 803.1(4) has no counterpart in the Federal Rules of Evidence. The purpose of this hearsay exception is to protect against the ‘‘turncoat witness’’ who once provided a statement, but now seeks to deprive the use of this evidence at trial. It is intended to permit the admission of a prior statement given under demonstrably reliable and trustworthy circumstances, see, e.g., Commonwealth v. Hanible, 30 A.3d 426, 445 n. 15 (Pa. 2011), when the declarant-witness feigns memory loss about the subject matter of the statement.

A prior statement made by a declarant-witness having credible memory loss about the subject matter of the statement, but able to testify that the statement accurately reflects his or her knowledge at the time it was made, may be admissible under Pa.R.E. 803.1(3). Otherwise, when a declarant-witness has a credible memory loss about the subject matter of the statement, see Pa.R.E. 804(a)(3).

The provisions of this Rule 803.1 amended March 10, 2000, effective immediately, 30 Pa.B. 1639; rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620; amended March 1, 2017, effective April 1, 2017, 47 Pa.B. 1623; amended July 22, 2025, effective October 1, 2025, 55 Pa.B. 5100. Immediately preceding text appears at serial pages (407867) to (407869).

History

• Source: The provisions of this Introductory Comment amended December 17, 2004, effective January 31, 2005, 35 Pa.

225 Pa. Code Rule 804 Exceptions to the Rule Against Hearsay—When the Declarant is Unavailable as a Witness. {#sec-rule-804 omnilex-key=us-pa-regs-official--title-225--Rule 804}

(a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant:

(1) is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies;

(2) refuses to testify about the subject matter despite a court order to do so;

(3) testifies to not remembering the subject matter, except as provided in Rule 803.1(4);

(4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; or

(5) is absent from the trial or hearing and the statement’s proponent has not been able, by process or other reasonable means, to procure:

(A) the declarant’s attendance, in the case of a hearsay exception under Rule 804(b)(1) or (6); or

(B) the declarant’s attendance or testimony, in the case of a hearsay exception under Rule 804(b)(2), (3), or (4).

But this paragraph (a) does not apply if the statement’s proponent procured or wrongfully caused the declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying.

Pa.R.E. 804(a)(3) differs from F.R.E. 804(a)(3) in that it excepts from this rule instances where a declarant-witness’s claim of an inability to remember the subject matter of a prior statement is not credible, provided the statement meets the requirements found in Pa.R.E. 803.1(4). This rule is otherwise identical to F.R.E. 804(a). A declarant-witness with credible memory loss about the subject matter of a prior statement may be subject to this rule.

The provisions of this Rule 804 amended March 10, 2000, effective immediately, 30 Pa.B. 1639; amended December 17, 2004, effective January 31, 2005, 35 Pa.B. 8; rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620; amended March 1, 2017, effective April 1, 2017, 47 Pa.B. 1623. Immediately preceding text appears at serial page (365916).

History

• Source: The provisions of this Introductory Comment amended December 17, 2004, effective January 31, 2005, 35 Pa.

225 Pa. Code Rule 804 The Exceptions. {#sec-rule-804 omnilex-key=us-pa-regs-official--title-225--Rule 804}

(b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:

(1) Former Testimony. Testimony that:

(A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and

(B) is now offered against a party who had—or, in a civil case, whose predecessor in interest had—an opportunity and similar motive to develop it by direct, cross-, or redirect examination.

Pa.R.E. 804(b)(1) is identical to F.R.E. 804(b)(1).

In criminal cases the Supreme Court has held that former testimony is admissible against the defendant only if the defendant had a ‘‘full and fair’’ opportunity to examine the witness. See Commonwealth v. Bazemore, 614 A.2d 684 (Pa. 1992).

Depositions

Depositions are the most common form of former testimony that is introduced at a modern trial. Their use is provided for not only by Pa.R.E. 804(b)(1), but also by statute and rules of procedure promulgated by the Pennsylvania Supreme Court.

The Judicial Code provides for the use of depositions in criminal cases. 42 Pa.C.S. § 5919 provides:

Depositions in criminal matters. The testimony of witnesses taken in accordance with section 5325 (relating to when and how a deposition may be taken outside this Commonwealth) may be read in evidence upon the trial of any criminal matter unless it shall appear at the trial that the witness whose deposition has been taken is in attendance, or has been or can be served with a subpoena to testify, or his attendance otherwise procured, in which case the deposition shall not be admissible.

42 Pa.C.S. § 5325 sets forth the procedure for taking depositions, by either prosecution or defendant, outside Pennsylvania.

In civil cases, the introduction of depositions, or parts thereof, at trial is provided for by Pa.R.C.P. No. 4020(a)(3) and (5).

A video deposition of a medical witness, or any expert witness, other than a party to the case, may be introduced in evidence at trial, regardless of the witness’s availability, pursuant to Pa.R.C.P. No. 4017.1(g).

42 Pa.C.S. § 5936 provides that the testimony of a licensed physician taken by deposition in accordance with the Pennsylvania Rules of Civil Procedure is admissible in a civil case. There is no requirement that the physician testify as an expert witness.

(2) Statement Under Belief of Imminent Death. A statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.

Pa.R.E. 804(b)(2) differs from F.R.E. 804(b)(2) in that the Federal Rule is applicable in criminal cases only if the defendant is charged with homicide. The Pennsylvania Rule is applicable in all civil and criminal cases, subject to the defendant’s right to confrontation in criminal cases.

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court interpreted the Confrontation Cause in the Sixth Amendment of the United States Constitution to prohibit the introduction of ‘‘testimonial’’ hearsay from an unavailable witness against a defendant in a criminal case unless the defendant had an opportunity to confront and cross-examine the declarant, regardless of its exception from the hearsay rule. However, in footnote 6, the Supreme Court said that there may be an exception, sui generis, for those dying declarations that are testimonial.

(3) Statement Against Interest. A statement that:

(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and

(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.

This rule is identical to F.R.E. 804(b)(3).

(4) Statement of Personal or Family History. A statement made before the controversy arose about:

(A) the declarant’s own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood, adoption or marriage, or similar facts of personal or family history, even though the declarant had no way of acquiring personal knowledge about that fact; or

(B) another person concerning any of these facts, as well as death, if the declarant was related to the person by blood, adoption, or marriage or was so intimately associated with the person’s family that the declarant’s information is likely to be accurate.

Pa.R.E. 804(b)(4) differs from F.R.E. 804(b)(4) by requiring that the statement be made before the controversy arose. See In re McClain’s Estate, 392 A.2d 1371 (Pa. 1978). This requirement is not imposed by the Federal Rule.

(5) Other exceptions (Not Adopted)

Pennsylvania has not adopted F.R.E. 804(b)(5) (now F.R.E. 807).

(6) Statement Offered Against a Party That Wrongfully Caused the Declarant’s Unavailability. A statement offered against a party that wrongfully caused—or acquiesced in wrongfully causing—the declarant’s unavailability as a witness, and did so intending that result.

This rule is identical to F.R.E. 804(b)(6).

Official Note

Adopted May 8, 1998, effective October 1, 1998; Comment revised March 10, 2000, effective immediately; rescinded and replaced January 17, 2013, effective March 18, 2013; amended March 1, 2017, effective April 1, 2017.

Committee Explanatory Reports:

Final Report explaining the March 10, 2000 revision of the Comment to paragraph (b)(4) published with the Court’s Order at 30 Pa.B. 1641 (March 25, 2000).

Final Report explaining the January 17, 2013 rescission and replacement published with the Court’s Order at 43 Pa.B. 620 (February 2, 2013).

Final Report explaining the March 1, 2017 amendment of paragraph (a)(3) published with the Court’s Order at 47 Pa.B. 1627 (March 18, 2017).

The provisions of this Rule 804(b) adopted January 17, 2013, effective in sixty days, 43 Pa.B. 620; amended March 1, 2017, effective April 1, 2017, 47 Pa.B. 1623. Immediately preceding text appears at serial pages (365916) to (365917).

History

• Source: The provisions of this Introductory Comment amended December 17, 2004, effective January 31, 2005, 35 Pa.

225 Pa. Code Rule 805 Hearsay Within Hearsay. {#sec-rule-805 omnilex-key=us-pa-regs-official--title-225--Rule 805}

Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule.

This rule is identical to F.R.E. 805.

Official Note

Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

Final Report explaining the January 17, 2013 rescission and replacement published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013).

The provisions of this Rule 805 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620. Immediately preceding text appears at serial page (308928).

History

• Source: The provisions of this Introductory Comment amended December 17, 2004, effective January 31, 2005, 35 Pa.

225 Pa. Code Rule 806 Attacking and Supporting the Declarant’s Credibility. {#sec-rule-806 omnilex-key=us-pa-regs-official--title-225--Rule 806}

When a hearsay statement has been admitted in evidence, the declarant’s credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness. The court may admit evidence of the declarant’s inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it. If the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross-examination.

Pa.R.E. 806 differs from F.R.E. 806 in that Pa.R.E. 806 makes no reference to Rule 801(d)(2). The subject matter of F.R.E. 801(d)(2) (an opposing party’s statement) is covered by Pa.R.E. 803(25). The change is not substantive. Pa.R.E. 806 is consistent with Pennsylvania law. See Commonwealth v. Davis, 363 Pa. Super. 562, 526 A.2d 1205 (1987).

The requirement that a witness be given an opportunity to explain or deny the making of an inconsistent statement provided by Pa.R.E. 613(b)(2) is not applicable when the prior inconsistent statement is offered to impeach a statement admitted under an exception to the hearsay rule. In most cases, the declarant will not be on the stand at the time when the hearsay statement is offered and for that reason the requirement of Pa.R.E. 613(b)(2) is not appropriate.

Official Note

Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

Final Report explaining the January 17, 2013 amendments published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013).

The provisions of this Rule 806 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620. Immediately preceding text appears at serial pages (808928) to (308929).

History

• Source: The provisions of this Introductory Comment amended December 17, 2004, effective January 31, 2005, 35 Pa.

225 Pa. Code Rule 807 Residual Exception (Not Adopted). {#sec-rule-807 omnilex-key=us-pa-regs-official--title-225--Rule 807}

Pennsylvania has not adopted F.R.E. 807.

Official Note

Comment rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

Final Report explaining the January 17, 2013 amendments published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013).

The provisions of this Rule 807 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620. Immediately preceding text appears at serial page (308929).

History

• Source: The provisions of this Introductory Comment amended December 17, 2004, effective January 31, 2005, 35 Pa.

Chapter 9 AUTHENTICATION AND IDENTIFICATION

225 Pa. Code Rule 901 Authenticating or Identifying Evidence. {#sec-rule-901 omnilex-key=us-pa-regs-official--title-225--Rule 901}

(a) In General. Unless stipulated, to satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.

(b) Examples. The following are examples only—not a complete list—of evidence that satisfies the requirement:

(1) Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed to be.

(2) Nonexpert Opinion about Handwriting. A nonexpert’s opinion that handwriting is genuine, based on a familiarity with it that was not acquired for the current litigation.

(3) Comparison by an Expert Witness or the Trier of Fact. A comparison with an authenticated specimen by an expert witness or the trier of fact.

(4) Distinctive Characteristics and the Like. The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.

(5) Opinion About a Voice. An opinion identifying a person’s voice—whether heard firsthand or through mechanical or electronic transmission or recording—based on hearing the voice at any time under circumstances that connect it with the alleged speaker.

(6) Evidence About a Telephone Conversation. For a telephone conversation, evidence that a call was made to the number assigned at the time to:

(A) a particular person, if circumstances, including self-identification, show that the person answering was the one called; or

(B) a particular business, if the call was made to a business and the call related to business reasonably transacted over the telephone.

(7) Evidence About Public Records. Evidence that:

(A) a document was recorded or filed in a public office as authorized by law; or

(B) a purported public record or statement is from the office where items of this kind are kept.

(8) Evidence About Ancient Documents or Data Compilations. For a document or data compilation, evidence that it:

(A) is in a condition that creates no suspicion about its authenticity;

(B) was in a place where, if authentic, it would likely be; and

(C) is at least 30 years old when offered.

(9) Evidence About a Process or System. Evidence describing a process or system and showing that it produces an accurate result.

(10) Methods Provided by a Statute or a Rule. Any method of authentication or identification allowed by a statute or a rule prescribed by the Supreme Court.

(11) Digital Evidence. To connect digital evidence with a person or entity:

(A) direct evidence such as testimony of a person with personal knowledge; or

(B) circumstantial evidence such as:

(i) identifying content; or

(ii) proof of ownership, possession, control, or access to a device or account at the relevant time when corroborated by circumstances indicating authorship.

Pa.R.E. 901(a) is substantively identical to F.R.E. 901(a) and consistent with Pennsylvania law. The authentication or identification requirement may be expressed as follows: When a party offers evidence contending either expressly or impliedly that the evidence is connected with a person, place, thing, or event, the party must provide evidence sufficient to support a finding of the contended connection. See Commonwealth v. Hudson, 414 A.2d 1381 (Pa. 1980); Commonwealth v. Pollock, 606 A.2d 500 (Pa. Super. 1992). The proponent may be relieved of this burden when all parties have stipulated the authenticity or identification of the evidence. See, e.g., Pa.R.C.P. No. 212.3(a)(3) (Pre-Trial Conference); Pa.R.C.P. No. 4014 (Request for Admission); Pa.R.Crim.P. 570(A)(2) & (3) (Pre-Trial Conference).

In some cases, real evidence may not be relevant unless its condition at the time of trial is similar to its condition at the time of the incident in question. In such cases, the party offering the evidence must also introduce evidence sufficient to support a finding that the condition is similar. Pennsylvania law treats this requirement as an aspect of authentication. See Commonwealth v. Hudson, 414 A.2d 1381 (Pa. 1980).

Demonstrative evidence such as photographs, motion pictures, diagrams and models must be authenticated by evidence sufficient to support a finding that the demonstrative evidence fairly and accurately represents that which it purports to depict. See Nyce v. Muffley, 119 A.2d 530 (Pa. 1956).

Pa.R.E. 901(b) is identical to F.R.E. 901(b).

Pa.R.E. 901(b)(1) is identical to F.R.E. 901(b)(1). It is consistent with Pennsylvania law in that the testimony of a witness with personal knowledge may be sufficient to authenticate or identify the evidence. See Commonwealth v. Hudson, 414 A.2d 1381 (Pa. 1980).

Pa.R.E. 901(b)(2) is identical to F.R.E. 901(b)(2). It is consistent with 42 Pa.C.S. § 6111, which also deals with the admissibility of handwriting.

Pa.R.E. 901(b)(3) is identical to F.R.E. 901(b)(3). It is consistent with Pennsylvania law. When there is a question as to the authenticity of an exhibit, the trier of fact will have to resolve the issue. This may be done by comparing the exhibit to authenticated specimens. See Commonwealth v. Gipe, 84 A.2d 366 (Pa. Super. 1951) (comparison of typewritten document with authenticated specimen). Under this rule, the court must decide whether the specimen used for comparison to the exhibit is authentic. If the court determines that there is sufficient evidence to support a finding that the specimen is authentic, the trier of fact is then permitted to compare the exhibit to the authenticated specimen. Under Pennsylvania law, lay or expert testimony is admissible to assist the jury in resolving the question. See, e.g., 42 Pa.C.S. § 6111.

Pa.R.E. 901(b)(4) is identical to F.R.E. 901(b)(4). Pennsylvania law has permitted evidence to be authenticated by circumstantial evidence similar to that discussed in this illustration. The evidence may take a variety of forms including: evidence establishing chain of custody, see Commonwealth v. Melendez, 474 A.2d 617 (Pa. Super. 1984); evidence that a letter is in reply to an earlier communication, see Roe v. Dwelling House Ins. Co. of Boston, 23 A. 718 (Pa. 1892); testimony that an item of evidence was found in a place connected to a party, see Commonwealth v. Bassi, 130 A. 311 (Pa. 1925); a phone call authenticated by evidence of party’s conduct after the call, see Commonwealth v. Gold, 186 A. 208 (Pa. Super. 1936); and the identity of a speaker established by the content and circumstances of a conversation, see Bonavitacola v. Cluver, 619 A.2d 1363 (Pa. Super. 1993).

Pa.R.E. 901(b)(5) is identical to F.R.E. 901(b)(5). Pennsylvania law has permitted the identification of a voice to be made by a person familiar with the alleged speaker’s voice. See Commonwealth v. Carpenter, 372 A.2d 806 (Pa. 1977).

Pa.R.E. 901(b)(6) is identical to F.R.E. 901(b)(6). This paragraph appears to be consistent with Pennsylvania law. See Smithers v. Light, 157 A. 489 (Pa. 1931); Wahl v. State Workmen’s Ins. Fund, 11 A.2d 496 (Pa. Super. 1940).

Pa.R.E. 901(b)(7) is identical to F.R.E. 901(b)(7). This paragraph illustrates that public records and reports may be authenticated in the same manner as other writings. In addition, public records and reports may be self-authenticating as provided in Pa.R.E. 902. Public records and reports may also be authenticated as otherwise provided by statute. See Pa.R.E. 901(b)(10) and its Comment.

Pa.R.E. 901(b)(8) differs from F.R.E. 901(b)(8), in that the Pennsylvania Rule requires thirty years, while the Federal Rule requires twenty years. This change makes the rule consistent with Pennsylvania law. See Commonwealth ex rel. Ferguson v. Ball, 121 A. 191 (Pa. 1923).

Pa.R.E. 901(b)(9) is identical to F.R.E. 901(b)(9). There is very little authority in Pennsylvania discussing authentication of evidence as provided in this illustration. The paragraph is consistent with the authority that exists. For example, in Commonwealth v. Visconto, 448 A.2d 41 (Pa. Super. 1982), a computer print-out was held to be admissible. In Appeal of Chartiers Valley School District, 447 A.2d 317 (Pa. Cmwlth. 1982), computer studies were not admitted as business records, in part, because it was not established that the mode of preparing the evidence was reliable. The court used a similar approach in Commonwealth v. Westwood, 188 A. 304 (Pa. 1936) (test for gun powder residue) and in other cases to admit various kinds of scientific evidence. See Commonwealth v. Middleton, 550 A.2d 561 (Pa. Super. 1988) (electrophoretic analysis of dried blood); Commonwealth v. Rodgers, 605 A.2d 1228 (Pa. Super. 1992) (results of DNA/RFLP testing).

Pa.R.E. 901(b)(10) differs from F.R.E. 901(b)(10) to eliminate the reference to Federal law and to make the paragraph conform to Pennsylvania law.

Pa.R.E. 901(b)(11) has no counterpart in the Federal Rules of Evidence. ‘‘Digital evidence,’’ as used in this rule, is intended to include a communication, statement, or image existing in an electronic medium. This includes emails, text messages, social media postings, and images. The rule illustrates the manner in which digital evidence may be attributed to the author.

The proponent of digital evidence is not required to prove that no one else could be the author. Rather, the proponent must produce sufficient evidence to support a finding that a particular person or entity was the author. See Pa.R.E. 901(a).

Direct evidence under Pa.R.E. 901(b)(11)(A) may also include an admission by a party-opponent.

Circumstantial evidence of identifying content under Pa.R.E. 901(b)(11)(B)(i) may include self-identification or other distinctive characteristics, including a display of knowledge only possessed by the author. Circumstantial evidence of content may be sufficient to connect the digital evidence to its author.

Circumstantial evidence of ownership, possession, control, or access to a device or account alone is insufficient for authentication of authorship of digital evidence under Pa.R.E. 901(b)(11)(B)(ii). See, e.g., Commonwealth v. Mangel, 181 A.3d 1154, 1163 (Pa. Super. 2018) (social media account bearing defendant’s name, hometown, and high school was insufficient to authenticate the online and mobile device chat messages as having been authored by defendant). However, this evidence is probative in combination with other evidence of the author’s identity.

Expert testimony may also be used for authentication purposes. See, e.g., Commonwealth v. Manivannan, 186 A.3d 472 (Pa. Super. 2018).

There are a number of statutes that provide for authentication or identification of various types of evidence. See, e.g., 42 Pa.C.S. § 6103 (official records within the Commonwealth); 42 Pa.C.S. § 5328 (domestic records outside the Commonwealth and foreign records); 35 P.S. § 450.810 (vital statistics); 42 Pa.C.S. § 6106 (documents filed in a public office); 42 Pa.C.S. § 6110 (certain registers of marriages, births and burials records); 75 Pa.C.S. § 1547(c) (chemical tests for alcohol and controlled substances); 75 Pa.C.S. § 3368 (speed timing devices); 75 Pa.C.S. § 1106(c) (certificates of title); 42 Pa.C.S. § 6151 (certified copies of medical records); 23 Pa.C.S. § 5104 (blood tests to determine paternity); 23 Pa.C.S. § 4343 (genetic tests to determine paternity).

Official Note

Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced January 17, 2013, effective March 18, 2013; amended November 4, 2019, effective January 1, 2020; amended May 20, 2020, effective October 1, 2020.

Committee Explanatory Reports:

Final Report explaining the January 17, 2013 rescission and replacement published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013).

Final Report explaining the November 4, 2019 amendment of paragraph (1) published with the Court’s Order at 49 Pa.B. 6946 (November 23, 2019).

Final Report explaining the May 20, 2020 adoption of paragraph (b)(11) published with the Court’s Order at 50 Pa.B. 2839 (June 6, 2020).

The provisions of this Rule 901 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620; amended November 4, 2019, effective January 1, 2020, 49 Pa.B. 6942; amended May 20, 2020, effective October 1, 2020, 50 Pa.B. 2837. Immediately preceding text appears at serial pages (399673) to (399675).

History

• Source: The provisions of this Rule 901 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.

225 Pa. Code Rule 902 Evidence That is Self-Authenticating. {#sec-rule-902 omnilex-key=us-pa-regs-official--title-225--Rule 902}

The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted:

(1) Domestic Public Documents That Are Sealed and Signed. A document that bears:

(A) a seal purporting to be that of the United States; any state, district, commonwealth, territory, or insular possession of the United States; the former Panama Canal Zone; the Trust Territory of the Pacific Islands; a political subdivision of any of these entities; or a department, agency, or officer of any entity named above; and

(B) a signature purporting to be an execution or attestation.

(2) Domestic Public Documents That Are Not Sealed But Are Signed and Certified. A document that bears no seal if:

(A) it bears the signature of an officer or employee of an entity named in Rule 902(1)(A); and

(B) another public officer who has a seal and official duties within that same entity certifies under seal—or its equivalent—that the signer has the official capacity and that the signature is genuine.

(3) Foreign Public Documents. A document that purports to be signed or attested by a person who is authorized by a foreign country’s law to do so. The document must be accompanied by a final certification that certifies the genuineness of the signature and official position of the signer or attester—or of any foreign official whose certificate of genuineness relates to the signature or attestation or is in a chain of certificates of genuineness relating to the signature or attestation. The certification may be made by a secretary of a United States embassy or legation; by a consul general, vice consul, or consular agent of the United States; or by a diplomatic or consular official of the foreign country assigned or accredited to the United States. If all parties have been given a reasonable opportunity to investigate the document’s authenticity and accuracy, the court may for good cause, either:

(A) order that it be treated as presumptively authentic without final certification; or

(B) allow it to be evidenced by an attested summary with or without final certification.

(4) Certified Copies of Public Records. A copy of an official record—or a copy of a document that was recorded or filed in a public office as authorized by law—if the copy is certified as correct by:

(A) the custodian or another person authorized to make the certification; or

(B) a certificate that complies with Rule 902(1), (2), or (3), a statute, or a rule prescribed by the Supreme Court.

A certificate required by paragraph (4)(B) may include a handwritten signature, a copy of a handwritten signature, a computer generated signature, or a signature created, transmitted, received, or stored by electronic means, by the signer or by someone with the signer’s authorization. A seal may, but need not, be raised.

(5) Official Publications. A book, pamphlet, or other publication purporting to be issued by a public authority.

(6) Newspapers and Periodicals. Material purporting to be a newspaper or periodical.

(7) Trade Inscriptions and the Like. An inscription, sign, tag, or label purporting to have been affixed in the course of business and indicating origin, ownership, or control.

(8) Acknowledged Documents. A document accompanied by a certificate of acknowledgment that is lawfully executed by a notary public or another officer who is authorized to take acknowledgments.

(9) Commercial Paper and Related Documents. Commercial paper, a signature on it, and related documents, to the extent allowed by general commercial law.

(10) Presumptions Authorized by Statute. A signature, document, or anything else that a statute declares to be presumptively or prima facie genuine or authentic.

(11) Certified Domestic Records of a Regularly Conducted Activity. The original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)—(C), as shown by a certification of the custodian or another qualified person that complies with Pa.R.C.P. No. 76. Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record—and must make the record and certification available for inspection—so that the party has a fair opportunity to challenge them.

(12) Certified Foreign Records of a Regularly Conducted Activity. The original or a copy of a foreign record that meets the requirements of Rule 902(11), modified as follows: the certification rather than complying with a statute or Supreme Court rule, must be signed in a manner that, if falsely made, would subject the maker to a criminal penalty in the country where the certification is signed. The proponent must also meet the notice requirements of Rule 902(11).

(13) Certified Records Generated by an Electronic Process or System. A record generated by an electronic process or system that produces an accurate result, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent must also meet the notice requirements of Rule 902(11).

(14) Certified Data Copied from an Electronic Device, Storage Medium, or File. Data copied from an electronic device, storage medium, or file, if authenticated by a process of digital identification, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent also must meet the notice requirements of Rule 902(11).

(15) Certificate of Non-Existence of a Public Record. A certificate that a document was not recorded or filed in a public office as authorized by law if certified by the custodian or another person authorized to make the certificate.

This rule permits some evidence to be authenticated without extrinsic evidence of authentication or identification. In other words, the requirement that a proponent must present authentication or identification evidence as a condition precedent to admissibility, as provided by Pa.R.E. 901(a), is inapplicable to the evidence discussed in Pa.R.E. 902. The rationale for the rule is that, for the types of evidence covered by Pa.R.E. 902, the risk of forgery or deception is so small, and the likelihood of discovery of forgery or deception is so great, that the cost of presenting extrinsic evidence and the waste of court time is not justified. Of course, this rule does not preclude the opposing party from contesting the authenticity of the evidence. In that situation, authenticity is to be resolved by the finder of fact.

Pa.R.E. 902(1), (2), (3), and (4) deal with self-authentication of various kinds of public documents and records. They are identical to F.R.E. 902(1), (2), (3), and (4), except that Pa.R.E. 901(4) eliminates the reference to Federal law and does not require the certificate to include a pen-and-ink signature or raised seal for the self-authentication of public documents. These paragraphs are consistent with Pennsylvania statutory law. See, e.g. 42 Pa.C.S. § 6103 (official records within the Commonwealth); 42 Pa.C.S. § 5328 (domestic records outside the Commonwealth and foreign records); 35 P.S. § 450.810 (vital statistics); 42 Pa.C.S. § 6106 (documents filed in a public office).

The admission of a self-authenticating record of a prior conviction also requires sufficient evidence, either direct or circumstantial, to prove that the subject of the record is the same person for whom the record is offered in a proceeding. See, e.g., Commonwealth v. Boyd, 344 A.2d 864 (Pa. 1975).

Pa.R.E. 902(4) differs from F.R.E. 902(4) insofar as the rule does not require the certificate to include a pen-and-ink signature or raised seal for the self-authentication of public documents.

Pa.R.E. 902(5) is identical to F.R.E. 902(5). There is no corresponding statutory provision in Pennsylvania; however, 45 Pa.C.S. § 506 (judicial notice of the contents of the Pennsylvania Code and the Pennsylvania Bulletin) is similar to Pa.R.E. 902(5).

Pa.R.E. 902(6) differs from F.R.E. 902(6) insofar as it does not contain ‘‘printed’’ in reference to newspapers or periodicals. Cf. F.R.E. 101(b)(6) (‘‘[A] reference to any kind of written material or any other medium includes electronically stored information.’’). A newspaper or periodical should be available to the public online, digitally, or in print, principally devoted to the dissemination of local or general news and other editorial content, adherent to journalistic ethics and standards, and updating its content on a regular basis. For online newspapers and periodicals, links to other web content may be included, but the core content must reside on a server or website.

Pa.R.E. 902(6) permits both printed and digital newspapers and periodicals to be self-authenticated. Evidence purported to be an article or item from a newspaper or periodical must contain sufficient indicia of its original publication, including, but not limited to, the publication’s title; the date of publication; page or volume of the article or item, if the content appeared in print; and web address, if applicable, where the article or item was originally published.

Pa.R.E. 902(7) is identical to F.R.E. 902(7).

Pa.R.E. 902(8) is identical to F.R.E. 902(8). It is consistent with Pennsylvania law. See Sheaffer v. Baeringer, 29 A.2d 697 (Pa. 1943); Williamson v. Barrett, 24 A.2d 546 (Pa. Super. 1942); 57 Pa.C.S. § § 301—331 (Revised Uniform Law on Notarial Acts). An acknowledged document is a type of official record and the treatment of acknowledged documents is consistent with Pa.R.E. 902(1), (2), (3), and (4).

Pa.R.E. 902(9) is identical to F.R.E. 902(9). Pennsylvania law treats various kinds of commercial paper and documents as self-authenticating. See, e.g., 13 Pa.C.S. § 3505 (evidence of dishonor of negotiable instruments).

Pa.R.E. 902(10) differs from F.R.E. 902(10) to eliminate the reference to Federal law and to make the paragraph conform to Pennsylvania law. In some Pennsylvania statutes, the self-authenticating nature of a document is expressed by language creating a ‘‘presumption’’ of authenticity. See, e.g., 13 Pa.C.S. § 3505.

Pa.R.E. 902(11) and (12) permit the authentication of domestic and foreign records of regularly conducted activity by verification or certification. Pa.R.E. 902(11) is similar to F.R.E. 902(11). The language of Pa.R.E. 902(11) differs from F.R.E. 902(11) in that it refers to Pa.R.C.P. No. 76 rather than to Federal law. Pa.R.E. 902(12) differs from F.R.E. 902(12) in that it requires compliance with a Pennsylvania statute rather than a Federal statute.

Pa.R.E. 902(13) is identical to F.R.E. 902(13). This rule establishes a procedure by which parties can authenticate certain electronic evidence other than through the testimony of a foundation witness. The rule specifically allows the authenticity foundation that satisfies Rule 901(b)(9) to be established by a certification rather than the testimony of a live witness. A proponent establishing authenticity under this rule must present a certification containing information that would be sufficient to establish authenticity were that information provided by a witness at trial. If the certification provides information that would be insufficient to authenticate the record if the certifying person testified, then authenticity is not established under this rule.

A certification under this rule can establish only that the proffered item has satisfied the admissibility requirements for authenticity. The opponent remains free to object to admissibility of the proffered item on other grounds—including hearsay, relevance, or in criminal cases the right to confrontation. For example, a certification authenticating a computer output, such as a spreadsheet or a printout of a webpage, does not preclude an objection that the information produced is unreliable—the authentication establishes only that the output came from the computer.

The reference to the ‘‘certification requirements of Rule 902(11) or (12)’’ is only to the procedural requirements for a valid certification. There is no intent to require, or permit, a certification under this rule to prove the requirements of Rule 803(6). Rule 902(13) is solely limited to authentication of a record generated by an electronic process or system and any attempt to satisfy a hearsay exception must be made independently.

A challenge to the authenticity of electronic evidence may require technical information about the system or process at issue, including possibly retaining a forensic technical expert; such factors will affect whether the opponent has a fair opportunity to challenge the evidence given the notice provided.

Nothing in Rule 902(13) is intended to limit a party from establishing authenticity of electronic evidence on any ground provided in these Rules.

Pa.R.E. 902(14) is identical to F.R.E. 902(14). This rule establishes a procedure by which parties can authenticate data copied from an electronic device, storage medium, or an electronic file, using a certificate rather than through the testimony of a foundation witness. A proponent establishing authenticity under this rule must present a certification containing information that would be sufficient to establish authenticity were that information provided by a witness at trial. If the certification provides information that would be insufficient to authenticate the record if the certifying person testified, then authenticity is not established under this rule.

Today, data copied from electronic devices, storage media, and electronic files are ordinarily authenticated by ‘‘hash value.’’ A hash value is a number that is often represented as a sequence of characters and is produced by an algorithm based upon the digital contents of a drive, medium, or file. If the hash values for the original and copy are different, then the copy is not identical to the original. If the hash values for the original and copy are the same, it is highly improbable that the original and copy are not identical. Thus, identical hash values for the original and copy reliably attest to the fact that they are exact duplicates. This Rule allows self-authentication by a certification of a qualified person that she checked the hash value of the proffered item and that it was identical to the original. The Rule is flexible enough to allow certifications through processes other than comparison of hash value, including by other reliable means of identification provided by future technology.

A certification under this rule can only establish that the proffered item is authentic. The opponent remains free to object to admissibility of the proffered item on other grounds—including hearsay, relevance, or in criminal cases the right to confrontation. For example, in a criminal case in which data copied from a hard drive is proffered, the defendant can still challenge hearsay found in the hard drive, and can still challenge whether the information on the hard drive was placed there by the defendant.

The reference to the ‘‘certification requirements of Rule 902(11) or (12)’’ is only to the procedural requirements for a valid certification. There is no intent to require, or permit, a certification under this rule to prove the requirements of Rule 803(6). Rule 902(14) is solely limited to authentication, and any attempt to satisfy a hearsay exception must be made independently.

A challenge to the authenticity of electronic evidence may require technical information about the system or process at issue, including possibly retaining a forensic technical expert; such factors will affect whether the opponent has a fair opportunity to challenge the evidence given the notice provided.

Nothing in Rule 902(14) is intended to limit a party from establishing authenticity of electronic evidence on any ground provided in these Rules.

Pa.R.E. 902 (15) has no counterpart in the Federal Rules. This rule provides for the self-authentication of a certificate of the non-existence of a public record, as provided in Pa.R.E. 803(10)(A).

Official Note

Adopted May 8, 1998, effective October 1, 1998; amended November 2, 2001, effective January 1, 2002; amended February 23, 2004, effective May 1, 2004; rescinded and replaced January 17, 2013, effective March 18, 2013; amended November 9, 2016, effective January 1, 2017; amended June 12, 2017, effective November 1, 2017; amended October 22, 2019, effective January 1, 2020; amended November 4, 2019, effective January 2, 2020.

Committee Explanatory Reports:

Final Report explaining the November 2, 2001 amendments adding paragraphs (11) and (12) published with Court’s Order at 31 Pa.B. 6384 (November 24, 2001).

Final Report explaining the February 23, 2004 amendment of paragraph (12) published with Court’s Order at 34 Pa.B. 1429 (March 13, 2004).

Final Report explaining the January 17, 2013 rescission and replacement published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013).

Final Report explaining the November 9, 2016 addition of paragraph (13) published with the Court’s Order at 46 Pa.B. 7438 (November 26, 2016).

Final Report explaining the June 12, 2017 amendment of the Comment published with the Court’s Order at 47 Pa.B. 3491 (June 24, 2017).

Final Report explaining the October 22, 2019 amendment of paragraphs (4), (6), and (12) published with the Court’s Order at 49 Pa.B. 6946 (November 23, 2019).

Final Report explaining the November 4, 2019 amendment of paragraphs (4), (6), and (12) published with the Court’s Order at 49 Pa.B. 6946 (November 23, 2019).

Final Report explaining the November 4, 2019 adoption of paragraphs (13) and (14) published with the Court’s Order at 49 Pa.B. 6950 (November 23, 2019).

The provisions of this Rule 902 amended November 2, 2001, effective January 1, 2002, 31 Pa.B. 6381; amended February 23, 2004, effective May 1, 2004, 34 Pa.B. 1429; rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620; amended November 9, 2016, effective January 1, 2017, 46 Pa.B. 7436; amended June 12, 2017, effective November 1, 2017, 47 Pa.B. 3491; amended November 4, 2019, effective January 1, 2020, 49 Pa.B. 6942; amended November 4, 2019, effective January 2, 2020, 49 Pa.B. 6947. Immediately preceding text appears at serial pages (365925) to (365926) and (388153) to (388155).

History

• Source: The provisions of this Rule 901 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.

225 Pa. Code Rule 903 Subscribing Witness’s Testimony. {#sec-rule-903 omnilex-key=us-pa-regs-official--title-225--Rule 903}

A subscribing witness’s testimony is necessary to authenticate a writing only if required by the law of the jurisdiction that governs its validity.

This rule is identical to F.R.E. 903. There are no laws in Pennsylvania requiring the testimony of a subscribing witness to authenticate a writing.

Official Note

Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

Final Report explaining the January 17, 2013 rescission and replacement published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013).

The provisions of this Rule 903 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620. Immediately preceding text appears at serial pages (302933).

History

• Source: The provisions of this Rule 901 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.

Chapter 10 CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS

225 Pa. Code Rule 1001 Definitions That Apply to This Article. {#sec-rule-1001 omnilex-key=us-pa-regs-official--title-225--Rule 1001}

In this article:

(a) A ‘‘writing’’ consists of letters, words, numbers, or their equivalent set down in any form.

(b) A ‘‘recording’’ consists of letters, words, numbers, or their equivalent recorded in any manner.

(c) A ‘‘photograph’’ means a photographic image or its equivalent stored in any form.

(d) An ‘‘original’’ of a writing or recording means the writing or recording itself or any counterpart intended to have the same effect by the person who executed or issued it. For electronically stored information, ‘‘original’’ means any printout—or other output readable by sight—if it accurately reflects the information. An ‘‘original’’ of a photograph includes the negative or a print from it.

(e) A ‘‘duplicate’’ means a copy produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original.

This rule is identical to F.R.E. 1001, except that the word ‘‘copy’’ in Pa.R.E 1001(e) replaces the word ‘‘counterpart’’ used in F.R.E. 1001(e).

Paragraph 1001(e) defines the term duplicate. This term is important because of the admissibility of duplicates under Pa.R.E. 1003. This rule differs from the Federal Rule in that the word ‘‘counterpart’’ has been replaced by the word ‘‘copy.’’ The word ‘‘counterpart’’ is used in paragraph 1001(d) to refer to a copy intended to have the same effect as the writing or recording itself. The word ‘‘copy’’ is used in paragraph 1003(e) to mean a copy that was not intended to have the same effect as the original.

Pennsylvania law has permitted the use of duplicates produced by the same impression as the original, as is the case with carbon copies. See Brenner v. Lesher, 332 Pa. 522, 2 A.2d 731 (1938); Commonwealth v. Johnson, 373 Pa. Super. 312, 541 A.2d 332 (1988); Pennsylvania Liquor Control Bd. v. Evolo, 204 Pa. Super. 225, 203 A.2d 332 (1964). Pennsylvania has not treated other duplicates as admissible unless the original was shown to be unavailable through no fault of the proponent. For this reason, the definition of duplicates, other than those produced by the same impression as the original, is new to Pennsylvania law. The justification for adopting the new definition is discussed in the Comment to Pa.R.E. 1003.

Official Note

Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

Final Report explaining the January 17, 2013 rescission and replacement published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013).

The provisions of this Rule 1001 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620. Immediately preceding text appears at serial pages (245807) to (245808).

History

• Source: The provisions of this Rule 1001 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.

225 Pa. Code Rule 1002 Requirement of the Original. {#sec-rule-1002 omnilex-key=us-pa-regs-official--title-225--Rule 1002}

An original writing, recording, or photograph is required in order to prove its content unless these rules, other rules prescribed by the Supreme Court, or a statute provides otherwise.

Pa.R.E. 1002 differs from F.R.E. 1002 to eliminate the reference to Federal law.

This rule corresponds to the common law ‘‘best evidence rule.’’ See Hera v. McCormick, 425 Pa. Super. 432, 625 A.2d 682 (1993). The rationale for the rule was not expressed in Pennsylvania cases, but commentators have mentioned four reasons justifying the rule.

(1) The exact words of many documents, especially operative or dispositive documents, such as deeds, wills or contracts, are so important in determining a party’s rights accruing under those documents.

(2) Secondary evidence of the contents of documents, whether copies or testimony, is susceptible to inaccuracy.

(3) The rule inhibits fraud because it allows the parties to examine the original documents to detect alterations and erroneous testimony about the contents of the document.

(4) The appearance of the original may furnish information as to its authenticity.

5 Weinstein & Berger, Weinstein’s Evidence § 1002(2) (Sandra D. Katz rev. 1994).

The common law formulation of the rule provided that the rule was applicable when the terms of the document were ‘‘material.’’ The materiality requirement has not been eliminated, but is now dealt with in Pa.R.E. 1004(d). That rule provides that the original is not required when the writing, recording or photograph is not closely related to a controlling issue.

The case law has not been entirely clear as to when a party is trying ‘‘to prove the content of a writing, recording, or photograph.’’ However, writings that are viewed as operative or dispositive have usually been considered to be subject to the operation of the rule. On the other hand, writings are not usually treated as subject to the rule if they are only evidence of the transaction, thing or event. See Hamill-Quinlan, Inc. v. Fisher, 404 Pa. Super. 482, 591 A.2d 309 (1991); Noble C. Quandel Co. v. Slough Flooring, Inc., 384 Pa. Super. 236, 558 A.2d 99 (1989). Thus, testimony as to a person’s age may be offered; it is not necessary to produce a birth certificate. See Commonwealth ex rel. Park v. Joyce, 316 Pa. 434, 175 A. 422 (1934). Or, a party’s earnings may be proven by testimony; it is not necessary to offer business records. See Noble C. Quandel Co., supra.

Traditionally, the best evidence rule applied only to writings, but Pa.R.E. 1002 may be applicable to recordings or photographs. However, recordings and photographs are usually only evidence of the transaction, thing or event. It is rare that a recording or photograph would be operative or dispositive, but in cases involving matters such as infringement of copyright, defamation, pornography and invasion of privacy, the requirement for the production of the original should be applicable. There is support for this approach in Pennsylvania law. See Commonwealth v. Lewis, 424 Pa. Super. 531, 623 A.2d 355 (1993) (video tape); Anderson v. Commonwealth, 121 Pa. Cmwlth. 521, 550 A.2d 1049 (1988) (film).

Official Note

Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

Final Report explaining the January 17, 2013 rescission and replacement published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013).

The provisions of this Rule 1002 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620. Immediately preceding text appears at serial pages (245808) and (276591).

History

• Source: The provisions of this Rule 1001 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.

225 Pa. Code Rule 1003 Admissibility of Duplicates. {#sec-rule-1003 omnilex-key=us-pa-regs-official--title-225--Rule 1003}

A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original’s authenticity or the circumstances make it unfair to admit the duplicate.

This rule is identical to F.R.E. 1003.

Under the traditional best evidence rule, copies of documents were not routinely admissible. This view dated back to the time when copies were made by hand copying and were therefore subject to inaccuracy. On the other hand, Pennsylvania courts have admitted copies made by techniques that are more likely to produce accurate copies. For example, when a writing is produced in duplicate or multiplicate each of the copies is treated as admissible for purposes of the best evidence rule. See Brenner v. Lesher, 332 Pa. 522, 2 A.2d 731 (1938); Pennsylvania Liquor Control Bd. v. Evolo, 204 Pa. Super. 225, 203 A.2d 332 (1964).

In addition, various Pennsylvania statutes have treated some accurate copies as admissible. See 42 Pa.C.S. § 6104 (governmental records in the Commonwealth); 42 Pa.C.S. § 5328 (domestic records outside the Commonwealth and foreign records); 42 Pa.C.S. § 6106 (documents recorded or filed in a public office); 42 Pa.C.S. § 6109 (photographic copies of business and public records); 42 Pa.C.S. § § 6151—59 (certified copies of medical records).

The extension of similar treatment to all accurate copies seems justified in light of modern practice. Pleading and discovery rules such as Pa.R.C.P. No. 4009.1 (requiring production of originals of documents and photographs etc.) and Pa.R.Crim.P. 573(B)(1)(f) and (g) (requiring disclosure of originals of documents, photographs and recordings of electronic surveillance) will usually provide an adequate opportunity to discover fraudulent copies. As a result, Pa.R.E. 1003 should tend to eliminate purely technical objections and unnecessary delay. In those cases where the opposing party raises a genuine question as to authenticity or the fairness of using a duplicate, the trial court may require the production of the original under this rule.

Official Note

Adopted May 8, 1998, effective October 1, 1998; Comment revised March 29, 2001, effective April 1, 2001; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

Final Report explaining the March 29, 2001 revision of the Comment published with the Court’s Order at 31 Pa.B. 1995 (April 14, 2001).

Final Report explaining the January 17, 2013 rescission and replacement published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013).

The provisions of this Rule 1003 amended March 29, 2001, effective April 1, 2001, 31 Pa.B. 1993; rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620. Immediately preceding text appears at serial page (276591).

History

• Source: The provisions of this Rule 1001 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.

225 Pa. Code Rule 1004 Admissibility of Other Evidence of Content. {#sec-rule-1004 omnilex-key=us-pa-regs-official--title-225--Rule 1004}

An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if:

(a) all the originals are lost or destroyed, and not by the proponent acting in bad faith;

(b) an original cannot be obtained by any available judicial process;

(c) the party against whom the original would be offered had control of the original; was at that time put on notice, by pleadings or otherwise, that the original would be a subject of proof at the trial or hearing; and fails to produce it at the trial or hearing; or

(d) the writing, recording, or photograph is not closely related to a controlling issue.

This rule is identical to F.R.E. 1004.

When the proponent of the evidence alleges that it is lost, there should be evidence that a sufficient search was made. See Hera v. McCormick, 425 Pa. Super. 432, 625 A.2d 682 (1993).

Under Pa.R.E. 1004, when production of the original is not required, the proffering party need not offer a duplicate even if that is available; the proffering party may present any evidence including oral testimony. The normal motivation of a party to produce the most convincing evidence together with the availability of discovery to uncover fraud seems adequate to control abuse.

Official Note

Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

Final Report explaining the January 17, 2013 rescission and replacement published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013).

The provisions of this Rule 1004 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620. Immediately preceding text appears at serial page (276592).

History

• Source: The provisions of this Rule 1001 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.

225 Pa. Code Rule 1005 Copies of Public Records to Prove Content. {#sec-rule-1005 omnilex-key=us-pa-regs-official--title-225--Rule 1005}

The proponent may use a copy to prove the content of an official record—or of a document that was recorded or filed in a public office as authorized by law—if these conditions are met: the record or document is otherwise admissible; and the copy is certified as correct in accordance with Rule 902(4) or is testified to be correct by a witness who has compared it with the original. If no such copy can be obtained by reasonable diligence, then the proponent may use other evidence to prove the content.

This rule is identical to F.R.E. 1005.

Official Note

Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

Final Report explaining the January 17, 2013 rescission and replacement published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013).

The provisions of this Rule 1005 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620. Immediately preceding text appears at serial pages (276592) to (276593).

History

• Source: The provisions of this Rule 1001 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.

225 Pa. Code Rule 1006 Summaries to Prove Content. {#sec-rule-1006 omnilex-key=us-pa-regs-official--title-225--Rule 1006}

The proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time and place. And the court may order the proponent to produce them in court.

This rule is identical to F.R.E. 1006.

Official Note

Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

Final Report explaining the January 17, 2013 rescission and replacement published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013).

The provisions of this Rule 1006 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620. Immediately preceding text appears at serial page (276593).

History

• Source: The provisions of this Rule 1001 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.

225 Pa. Code Rule 1007 Testimony or Statement of a Party to Prove Content. {#sec-rule-1007 omnilex-key=us-pa-regs-official--title-225--Rule 1007}

The proponent may prove the content of a writing, recording, or photograph by the testimony, deposition, or written statement of the party against whom the evidence is offered. The proponent need not account for the original.

This rule is identical to F.R.E. 1007. There is no precise equivalent to Pa.R.E. 1007 under Pennsylvania law, but the rule is consistent with Pennsylvania practice. For example, Pa.R.C.P. No. 1019(h) requires a party to attach a copy of a writing to a pleading if any claim or defense is based on the writing. A responsive pleading admitting the accuracy of the writing would preclude an objection based on Rule 1002.

Similarly, Pa.R.C.P. No. 4014(a) permits a party to serve any other party with a request for admission as to the genuineness, authenticity, correctness, execution, signing, delivery, mailing or receipt of any document described in the request. Pa.R.C.P. No. 4014(d) provides that any matter admitted is conclusively established.

Official Note

Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

Final Report explaining the January 17, 2013 rescission and replacement published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013).

The provisions of this Rule 1007 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620. Immediately preceding text appears at serial page (276593).

History

• Source: The provisions of this Rule 1001 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.

225 Pa. Code Rule 1008 Functions of the Court and Jury. {#sec-rule-1008 omnilex-key=us-pa-regs-official--title-225--Rule 1008}

Ordinarily, the court determines whether the proponent has fulfilled the factual conditions for admitting other evidence of the content of a writing, recording, or photograph under Rule 1004 or 1005. But in a jury trial, the jury determines—in accordance with Rule 104(b)—any issue about whether:

(a) an asserted writing, recording, or photograph ever existed;

(b) another one produced at the trial or hearing is the original; or

(c) other evidence of content accurately reflects the content.

This rule is identical to F.R.E. 1008.

Official Note

Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

Final Report explaining the January 17, 2013 rescission and replacement published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013).

The provisions of this Rule 1008 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620. Immediately preceding text appears at serial pages (276593) to (276594).

History

• Source: The provisions of this Rule 1001 rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.