Opinion
SUPREME COURT RULES DOCKET NO. 779
10-25-2018
IN RE: ORDER APPROVING THE AMENDMENT OF PENNSYLVANIA RULES OF EVIDENCE 803(1) AND 803(2)
ORDER
AND NOW, this 25th day of October, 2018, upon the recommendation of the Committee on Rules of Evidence; the proposal having been published for public comment at 47 Pa.B. 7422 (December 9, 2017):
It is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that Pennsylvania Rules of Evidence 803(1) and 803(2) are amended in the attached form.
This Order shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective December 1, 2018. Additions to the rule are shown in bold and are underlined.
Deletions to the rule are shown in bold and in brackets.
Rule 803. Exceptions to the Rule Against Hearsay - Regardless of Whether the Declarant Is Available as a Witness
The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: Rule 803(1). Present Sense Impression (1) Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it. When the declarant is unidentified , the proponent shall show by independent corroborating evidence that the declarant actually perceived the event or condition.
Comment
This rule [is identical to] differs from F.R.E. 803(1) insofar as it requires independent corroborating evidence when the declarant is unidentified. See Commonwealth v . Hood , 872 A.2d 175 (Pa. Super. 2005).
For this exception to apply, declarant need not be excited or otherwise emotionally affected by the event or condition perceived. The trustworthiness of the statement arises from its timing. The requirement of contemporaneousness, or near contemporaneousness, reduces the chance of premeditated prevarication or loss of memory.
Rule 803(2). Excited Utterance
(2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused. When the declarant is unidentified , the proponent shall show by independent corroborating evidence that the declarant actually perceived the startling event or condition.
Comment
This rule [is identical to] differs from F.R.E. 803(2) insofar as it requires independent corroborating evidence when the declarant is unidentified. See Commonwealth v . Upshur , 764 A.2d 69 (Pa. Super. 2000).
This exception has a more narrow base than the exception for a present sense impression, because it requires an event or condition that is startling. However, it is broader in scope because an excited utterance (1) need not describe or explain the startling event or condition; it need only relate to it, and (2) need not be made contemporaneously with, or immediately after, the startling event. It is sufficient if the stress of excitement created by the startling event or condition persists as a substantial factor in provoking the utterance.
There is no set time interval following a startling event or condition after which an utterance relating to it will be ineligible for exception to the hearsay rule as an excited utterance. In Commonwealth v. Gore, [262 Pa. Super. 540 , 547,] 396 A.2d 1302, 1305 ( Pa. Super. 1978), the court explained:
The declaration need not be strictly contemporaneous with the existing cause, nor is there a definite and fixed time limit.... Rather, each case must be judged on its own facts, and a lapse of time of several hours has not negated the characterization of a statement as an "excited utterance." ... The crucial question, regardless of the time lapse, is whether, at the time the statement is made, the nervous excitement continues to dominate while the reflective processes remain in abeyance.
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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 May 16, 2001, effective July 1, 2001; amended November 2, 2001, effective January 1, 2002; rescinded and replaced January 17, 2013, effective March 18, 2013; amended November 9, 2016, effective January 1, 2017 ; amended October 25 , 2018, effective December 1, 2018 Committee Explanatory Reports:
Final Report explaining the March 23, 1999 technical revisions to the Comment for paragraph 25 published with the Court's Order at 29 Pa.B. 1714 (April 3, 1999). Final Report explaining the March 10, 2000 revision of the Comment for paragraph 25 published with the Court's Order at 30 Pa.B. 1641 (March 25, 2000). Final Report explaining the May 16, 2001 revision of the Comment for paragraph 18 published with the Court's Order at 31 Pa.B. 2789 (June 2, 2001). Final Report explaining the November 2, 2001 amendments to paragraph 6 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. 620 (February 2, 2013). Final Report explaining the November 9, 2016 amendments to paragraph 6, 8, 10, and revision of the Comment for paragraph 7 and 9 published with the Court's Order at 46 Pa.B. 7436 ( November 26 , 2016). Final Report explaining the October 24 , 2018 amendments to paragraph 1 and 2 published with the Court's Order at 48 Pa.B. (___, 2018).
SUPREME COURT OF PENNSYLVANIA
COMMITTEE ON RULES OF EVIDENCE
FINAL REPORT
The Committee's Final Report should not be confused with the official Committee Comments to the rules. Also note that the Supreme Court does not adopt the Committee's Comments or the contents of the Committee's explanatory Final Reports. --------
Amendment of Pa.R.E. 803(1) & 803(2)
On October 25, 2018, effective December 1, 2018, upon recommendation of the Committee on Rules of Evidence, the Court ordered the amendment of Pennsylvania Rules of Evidence 803(1) and 803(2) to add a requirement of independent corroborating evidence when the declarant is unidentified.
Previously, the strict application of Pa.R.E. 803(1) and Pa.R.E. 803(2) did not consider whether the declarant was identified. However, evolving case law added a requirement of independent corroborating evidence that the declarant actually perceived the event or condition when the declarant is unidentified. See, e.g., Commonwealth v. Upshur, 764 A.2d 69 (Pa. Super. 2000); Commonwealth v. Hood, 872 A.2d 175 (Pa. Super. 2005). The Committee recommended amendment of Pa.R.E. 803(1) and Pa.R.E. 803(2) to contain this requirement as a means of ensuring the reliability of the declarant's statement, especially if the declarant is not identified.