On October 25, 2018, the Pennsylvania Supreme Court adopted two amendments to the Pennsylvania Rules of Evidence – the definitions of PRESENT SENSE IMPRESSIONS and EXCITED UTTERANCES both had new language added. Each rule now concludes with the following statement:
When the declarant is unidentified, the proponent shall show by independent corroborating evidence that the declarant actually perceived the event or condition. [1]
The COMMENT to each Rule was also amended, with the following language inserted:
This rule differs from [its Federal Rules of Evidence counterpart] insofar as it requires independent corroborating evidence when the declarant is unidentified.
On its surface, the changes merely reflect Pennsylvania decisional law requiring some corroborating proof that the declarant perceived the event when that speaker’s identity is unknown. See, Commonwealth v. Upshur, 2000 PA Super 376, ¶ 19, 764 A.2d 69, 76 (“Appellant has not shown by other corroborating evidence that the statement of identity made by the unidentified motorist was made by a declarant who had actually viewed the event”); Commonwealth v. Hood, 2005 PA Super 93, ¶ 20, 872 A.2d 175, 181-82 (“In order to assure that an unidentified bystander actually witnessed an event which is relevant at the time of trial…it is incumbent upon the party seeking the admission of the out-of-court statement to demonstrate by the use of ‘other corroborating evidence’ that the declarant actually viewed the event ‘of which he speaks.’”).
So what are the dangers? The changes arguably imply that when the declarant’s identity is known no proof that the speaker perceived the event is needed. If that is how any lawyer or Judge reads the Rules, that person is mistaken.
Personal knowledge – proof that the incident or condition being described was actually seen, smelled, touched, tasted or heard – is required for all hearsay evidence other than party opponent admissions. The reason is simple – if we won’t allow a live witness to testify to things s/he could not have perceived, then a hearsay declarant may not somehow do so. As one court explained,
“Courts require that declarants of a hearsay statement have firsthand knowledge before the hearsay statement is admissible…The party offering a statement has the burden of proving personal knowledge. In a hearsay situation, the declarant is, of course, a witness…
The rationale for requiring a hearsay declarant to have personal knowledge when the declarant‘s statement is admitted for its truth is identical to the rationale for requiring a witness to have personal knowledge of the subject matter of the witness’s testimony. In the absence of personal knowledge, a witness’s testimony or a declarant’s statement is no better than rank hearsay or, even worse, pure speculation. The admission of a hearsay statement not based on personal knowledge puts the fact finder in the position of determining the truth of a statement without knowledge of its source and without any means of evaluating the reliability of the source of the information.
People v. Valencia, 146 Cal. App. 4th 92, 103-04, 52 Cal. Rptr. 3d 649, 657 (2006) (internal quotations and citations omitted).
Pennsylvania caselaw predating the adoption of the current Rules of Evidence acknowledged as much, requiring personal knowledge even for a dying declaration:
what needs to be shown is that the victim had the opportunity to observe the facts that he declares…Where there is room for doubt as to whether the victim’s statement is based on personal knowledge, it is a question for the jury. McCormick, supra, at 832. It is only when it is clear that the victim had no opportunity to observe the facts that he declares that a dying declaration is inadmissible for want of personal knowledge.
Commonwealth v. Griffin, 453 Pa. Super. 657, 666, 684 A.2d 589, 593 (1996). Griffin makes clear that while the threshold for finding personal knowledge may be low, it still applies to hearsay.
So, what should the Evidence Rules Committee amendments be taken to mean? Not that personal knowledge is required, and must be independently corroborated, only when the declarant is unknown. The more accurate statements of law are as follows:
- For all hearsay except statements of a party opponent, there must be some evidence from which the finder of fact may conclude that the declarant perceived what is being described.
- When the declarant is identified, that may include the declarant’s own words (e.g., “Oh my, I just saw Jack push Jill”) or other circumstantial evidence.
- When the declarant is unidentified, the proponent of a present sense impression or an excited utterance mustl show by independent corroborating evidence that the declarant actually perceived the event or condition.
Anything less strips hearsay evidence of a proper foundation; and anything less permits trials on guesses and speculation.
[1] The new rules and comments can be found at http://www.pacourts.us/courts/supreme-court/committees/rules-committees/committee-on-rules-of-evidence/