In Re: Order Amending Rules 803.1 and 804, and Approving the Revision of the Comment to Rule 613 of the Pennsylvania of Pennsylvania Rules of Evidence

Summary

This document contains a Pennsylvania Supreme Court order amending Pennsylvania Rules of Evidence 803.1 and 804 and approving revisions to the Comment to Rule 613. The amendments address prior inconsistent and consistent statements, recorded recollections, declarant unavailability, and related hearsay exceptions.

Holdings

1. A witness may be examined about a prior inconsistent statement to impeach credibility without initially showing or disclosing the statement to the witness, but on request the statement or its contents must be shown or disclosed to the adverse party's attorney. Extrinsic evidence of the statement generally is admissible only after the witness is shown the written statement or told its contents, is given an opportunity to explain or deny making it, and the adverse party is given an opportunity to question the witness.
2. A prior consistent statement is admissible to rehabilitate a witness's credibility when the opposing party has an opportunity to cross-examine the witness about the statement and the statement is offered to rebut an express or implied charge of fabrication, bias, improper influence or motive, faulty memory, or a prior inconsistent statement that the witness has denied or explained.
3. A prior inconsistent statement of a declarant-witness who testifies and is subject to cross-examination is not excluded by the hearsay rule when it was made under oath in a qualifying proceeding, is a writing signed and adopted by the declarant, or is a verbatim contemporaneous electronic recording of an oral statement.
4. A recorded recollection may be admitted when the declarant-witness once knew the matter but cannot now recall it sufficiently, made or adopted the record while the matter was fresh, and testifies that the record accurately reflects the witness's knowledge at the time it was made.
5. A prior statement by a declarant-witness who testifies to an inability to remember the subject matter may qualify as a hearsay exception if the claimed inability is not credible and the statement satisfies the specified oath, signed-writing, or verbatim contemporaneous electronic-recording requirements. A credible inability to remember may instead establish unavailability under Rule 804(a)(3), subject to the recorded-recollection exception when applicable.

Questions Presented

1. Whether Rule 613 should be revised to clarify the requirements for using prior inconsistent statements for impeachment and prior consistent statements for rehabilitation.
2. Whether Rule 803.1 should be amended to revise the treatment of prior inconsistent statements, recorded recollections, and statements by declarant-witnesses claiming inability to remember.
3. Whether Rule 804 should be amended to address unavailability based on claimed memory loss and related hearsay exceptions.

Disposition

approved