In Re: Order Amending Rules 803(6), 803(8) and 803(10) Approving the Revision of the Comments to Rules 802, 803(7) and 803(9), and Adopting New Rule 902(13) of the Pennsylvania Rules of Evidence

Citation: Not availableDocket: 715 Supreme Court Rules Docket

Court: Supreme Court of Pennsylvania; November 8, 2016; Pennsylvania; State Supreme Court

Original Court Document: View Document

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Hearsay is generally inadmissible in Pennsylvania courts, except as outlined in specific rules, Pennsylvania Supreme Court regulations, or state statutes. Unlike the Federal Rules of Evidence, Pennsylvania Rules of Evidence (Pa.R.E.) 802 specifies that admissibility can stem from state provisions rather than federal ones. Exceptions to the hearsay rule are detailed in three specific rules: Pa.R.E. 803 (exceptions regardless of the declarant's availability), Pa.R.E. 803.1 (exceptions requiring the declarant's testimony), and Pa.R.E. 804 (exceptions when the declarant is unavailable). Additionally, hearsay may be admissible under other Pennsylvania rules, such as for civil depositions (Pa.R.C.P. No. 4020) or expert video depositions (Pa.R.C.P. No. 4017.1(g)), and in criminal cases, certain hearsay evidence is permissible under rules like Pa.R.Crim. P. 542(E) and 574. State statutes also allow for hearsay admission, such as public records under 42 Pa.C.S. 6104. 

Pa.R.E. 803(6) specifically addresses the admissibility of records from regularly conducted activities, requiring that the record was made near the event's occurrence, kept in the course of a business activity, and made as a regular practice. The authenticity of such records must be supported by testimony or certification, while the opposing party must not demonstrate a lack of trustworthiness. Notably, Pa.R.E. 803(6) differs from its federal counterpart by explicitly defining 'record.'

Pa. R.E. 803(6) distinguishes between records of acts, events, or conditions and excludes opinions and diagnoses, aligning with previous Pennsylvania case law such as Williams v. McClain and Commonwealth v. DiGiacomo. The rule permits the exclusion of business records if their source or surrounding circumstances indicate a lack of trustworthiness, differing from the Federal Rule that requires both source and method considerations. In criminal cases, records may be excluded if their admission infringes on a defendant's constitutional right to confront witnesses, though forensic lab reports may still be admissible. Pennsylvania has not adopted F.R.E. 803(7), which allows for the introduction of evidence proving the nonexistence of a record, as its absence is viewed as circumstantial evidence rather than hearsay. This aligns with Pennsylvania’s approach that governs admissibility based on relevance rather than hearsay. Additionally, Pa. R.E. 803(8) on public records has not been adopted; instead, 42 Pa.C.S. 6104 provides a framework for admitting authenticated governmental records, limited to factual existence and nonexistence, excluding opinions and diagnoses. This statutory provision reflects the same principles found in Pa. R.E. 803(6).

Rules 901(b)(7), 902(1), and 42 Pa.C.S. §§ 5328, 6103, and 6106 relate to the authentication of public records in Pennsylvania. The state has not adopted Federal Rule of Evidence (F.R.E.) 803(9) concerning public records of vital statistics, which may be exempt from the hearsay rule under Pennsylvania Rule of Evidence (Pa. R.E.) 803(6) and 42 Pa.C.S. § 6104. The absence of a public record, addressed under Pa. R.E. 803(10), requires testimony or certification of a diligent search failing to disclose such a record. In criminal cases, the Commonwealth's attorney must notify the defendant at least 20 days before trial of the intent to use such certification, allowing the defendant to demand testimony within 10 days of notice. 

Pa. R.E. 803(10) and 42 Pa.C.S. § 6104(b) establish that evidence of the nonexistence of a fact is admissible if a record authenticated under § 6103 shows no such entry exists. Additionally, 42 Pa.C.S. § 5328(d) allows for a written statement of diligent search with no findings to serve as evidence of a lack of record. The Pennsylvania rules differ from the federal rules in specific aspects, ensuring consistency with state law and upholding defendants' rights to confront witnesses against them, as noted in Melendez-Diaz v. Massachusetts. The rule's procedural requirements do not override existing Pennsylvania Rules of Criminal Procedure and allow for judicial flexibility in time extensions. The rule has undergone several amendments and revisions since its initial adoption in 1998.

The document outlines a series of amendments and revisions to the Pennsylvania Rules of Evidence, specifically addressing self-authenticating evidence under Rule 902. Notable revisions include:

1. **May 16, 2001**: Revision of the Comment for paragraph 18 published in the Court's Order at 31 Pa.B. 2789.
2. **November 2, 2001**: Amendments to paragraph 6 published in the Court's Order at 31 Pa.B. 6384.
3. **January 17, 2013**: Rescission and replacement of the rule published in the Court’s Order at 43 Pa.B. 620.
4. **November 9, 2016**: Amendments to paragraphs 6, 8, and 10, and revisions to the Comments for paragraphs 7 and 9, published in the Court’s Order.

Rule 902 specifies that certain items of evidence are self-authenticating and do not require additional evidence for admission. This includes a Certificate of Non-Existence of a Public Record, which is a document certifying that another document was not recorded or filed in a public office, as certified by an authorized individual. It is noted that this provision has no counterpart in the Federal Rules of Evidence. The rule has undergone multiple amendments since its adoption on May 8, 1998, with effective dates following each amendment. Committee Explanatory Reports have been published for each significant change, detailing the modifications and their implications.