{"id":2253,"date":"2018-11-21T11:30:00","date_gmt":"2018-11-21T16:30:00","guid":{"rendered":"https:\/\/www2.law.temple.edu\/aer\/?p=2253"},"modified":"2021-12-16T14:57:22","modified_gmt":"2021-12-16T14:57:22","slug":"a-new-confusing-change-to-pennsylvanias-hearsay-rules","status":"publish","type":"post","link":"https:\/\/law.temple.edu\/aer\/2018\/11\/21\/a-new-confusing-change-to-pennsylvanias-hearsay-rules\/","title":{"rendered":"A New (Confusing) Change to Pennsylvania’s Hearsay Rules"},"content":{"rendered":"

On October 25, 2018, the Pennsylvania Supreme Court adopted two amendments to the Pennsylvania Rules of Evidence \u2013 the definitions of PRESENT SENSE IMPRESSIONS and EXCITED UTTERANCES both had new language added.\u00a0 Each rule now concludes with the following statement:<\/p>\n

When the declarant is unidentified, the proponent shall show by independent corroborating evidence that the declarant actually perceived the event or condition. [1]<\/a><\/p>\n

The COMMENT to each Rule was also amended, with the following language inserted:<\/p>\n

This rule differs from [its Federal Rules of Evidence counterpart] insofar as it requires independent corroborating evidence when the declarant is unidentified.<\/p>\n

On its surface, the changes merely reflect Pennsylvania decisional law requiring some corroborating proof that the declarant perceived the event when that speaker\u2019s identity is unknown.\u00a0 See<\/em>, Commonwealth v. Upshur<\/u>, 2000 PA Super 376, \u00b6 19, 764 A.2d 69, 76 \u00a0(\u201cAppellant 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\u201d);\u00a0 Commonwealth v. Hood<\/u>, 2005 PA Super 93, \u00b6 20, 872 A.2d 175, 181-82 (\u201cIn order to assure that an unidentified\u00a0 bystander actually witnessed an event which is relevant at the time of trial\u2026it is incumbent upon the party seeking the admission of the out-of-court statement to demonstrate by the use of \u2018other corroborating evidence\u2019<\/em> that the declarant actually viewed the event \u2018of which he speaks.\u2019\u201d).<\/p>\n

So what are the dangers?\u00a0 The changes arguably imply that when the declarant\u2019s identity is known no<\/em> proof that the speaker perceived the\u00a0 event is needed.\u00a0 If that is how any lawyer or Judge reads the Rules, that person is mistaken.<\/p>\n

Personal knowledge \u2013 proof that the incident or condition being described was actually seen, smelled, touched, tasted or heard \u2013 is required for all hearsay evidence other than party opponent admissions.\u00a0 The reason is simple \u2013 if we won\u2019t allow a live witness to testify to things s\/he could not have perceived, then a hearsay declarant may not somehow do so.\u00a0 As one court explained,<\/p>\n

\u201cCourts require that declarants of a hearsay statement have firsthand knowledge before the hearsay statement is admissible\u2026The party offering a statement has the burden of proving personal knowledge.\u00a0 In a hearsay situation, the declarant is, of course, a witness\u2026<\/p>\n

The rationale for requiring a hearsay<\/strong> declarant<\/strong> to have personal<\/strong> knowledge<\/strong> when the declarant<\/strong>‘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.<\/p>\n

People v. Valencia<\/u>, 146 Cal. App. 4th 92, 103-04, 52 Cal. Rptr. 3d 649, 657 (2006)\u00a0(internal quotations and citations omitted).<\/p>\n

Pennsylvania caselaw predating the adoption of the current Rules of Evidence acknowledged as much, requiring personal knowledge even for a dying declaration:<\/p>\n

what needs to be shown is that the victim had the opportunity to observe the facts that he declares\u2026Where 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,<\/em> at 832. It is only when it is clear that the victim had no opportunity to\u00a0observe the facts that he declares that a dying declaration is inadmissible for want of personal knowledge.<\/p>\n

Commonwealth v. Griffin<\/u>, 453 Pa. Super. 657, 666, 684 A.2d 589, 593 (1996).\u00a0 Griffin<\/em> makes clear that while the threshold for finding personal knowledge may be low, it still applies to hearsay.<\/p>\n

So, what should the Evidence Rules Committee amendments be taken to mean?\u00a0 Not that personal knowledge is required, and must be independently corroborated, only<\/em> when the declarant is unknown.\u00a0 The more accurate statements of law are as follows:<\/p>\n