§ Rule 804. Hearsay exceptions; declarant unavailable

Rule 804. Hearsay exceptions; declarant unavailable

(a) Definition of unavailability. “Unavailability as a witness” includes situations in which the declarant:

(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement; or

(2) persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so; or

(3) testifies to a lack of memory of the subject matter of the declarant's statement; or

(4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or

(5) is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant's attendance or testimony) by process or other reasonable means.

A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.

(b) Hearsay Exceptions. The following statements, as hereinafter defined, are not excluded by the hearsay rule if the declarant is unavailable as a witness:

Comment: Pa.R.E. 804(a) is identical to F.R.E. 804(a). Though there is no common definition of unavailability for hearsay purposes in prior Pennsylvania law, the rule is consistent with case law applying the four hearsay exceptions that require unavailability.

The exceptions to the hearsay rule in F.R.E. 804(b) apply only if the declarant is unavailable to testify in person. It seems reasonable to apply the same definition of unavailability to all of them. This definition is supplied by F.R.E. 804(a).

Pa.R.E. 804(b) differs somewhat from F.R.E. 804(b). The differences are explained in the Comments to the rule's subdivisions, which define individual exceptions to the hearsay rule.

(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an adequate opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

Comment: Pa.R.E. 804(b)(1) is identical to F.R.E. 804(b)(1), except that it adds the word “adequate” in front of opportunity. It is consistent with Pennsylvania law.

Pennsylvania has two statutes that provide exceptions to the hearsay rule for former testimony. Both are entitled, “Notes of evidence at former trial.” 42 Pa.C.S. § 5917 applies only to criminal cases.42 Pa.C.S. § 5934 applies only to civil cases. Both are reenactments of statutes that were originally passed in 1887.

These two statutes, which are limited in scope, have less significance than they might otherwise have because the Pennsylvania Supreme Court has recognized a broader exception to the hearsay rule for former testimony as a matter of its developing common law. See, e.g., Commonwealth v. Graves, 398 A.2d 644 (Pa. 1979); Commonwealth v. Rodgers, 372 A.2d 771 (Pa. 1977). The addition of an “adequate” opportunity to cross-examine is consistent with Pennsylvania law. See Commonwealth v. Bazemore, 614 A.2d 684 (Pa. 1992) (requiring a “full and fair” opportunity to cross-examine).

Depositions

Depositions are the most common form of prior testimony that is introduced at a modern trial. Their use is provided for not only by Pa.R.E. 804(b)(1), but also by statute and rules of procedure promulgated by the Pennsylvania Supreme Court.

The Judicial Code provides for the use of depositions in criminal cases.42 Pa.C.S. § 5919 provides:

Depositions in criminal matters. The testimony of witnesses taken in accordance with section 5325 (relating to when and how a deposition may be taken outside this Commonwealth) may be read in evidence upon the trial of any criminal matter unless it shall appear at the trial that the witness whose deposition has been taken is in attendance, or has been or can be served with a subpoena to testify, or his attendance otherwise procured, in which case the deposition shall not be admissible.

42 Pa.C.S. § 5325 sets forth the procedure for taking depositions, by either prosecution or defendant, outside Pennsylvania.

Again, the Pennsylvania Supreme Court, as a matter of common law development, has recognized an exception to the hearsay rule for depositions that is broader than the statute. See Commonwealth v. Stasko, 370 A.2d 350 (Pa. 1977).

In civil cases, the introduction of depositions, or parts thereof, at trial is provided for by Pa.R.C.P. 4020(a)(3) and (5):

(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds

(a) that the witness is dead, or

(b) that the witness is at a greater distance than one hundred (100) miles from the place of trial or is outside the Commonwealth, unless it appears that the absence of the witness was procured by the party offering the deposition, or

(d) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena, or

(e) upon application and notice that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.

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(5) A deposition upon oral examination of a medical witness, other than a party, may be used at trial for any purpose whether or not the witness is available to testify.

A videotape deposition of a medical witness, or any expert witness, other than a party to the case, may be introduced in evidence at trial, regardless of the witness's availability, pursuant to Pa.R.C.P. 4017.1(g).

By statute, the testimony of a licensed physician taken by deposition in accordance with the Pennsylvania Rules of Civil Procedure is admissible in a civil case. There is no requirement that the physician testify as an expert witness.42 Pa.C.S. § 5936 provides:

Medical testimony by deposition

(a) General rule. The testimony of any physician licensed to practice medicine may be taken by oral interrogation in the manner prescribed by general rule for the taking of depositions.

(b) Admissibility. A deposition taken under subsection (a) shall be admissible in a civil matter.

(2) Statement under belief of impending death. A statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.

Comment: Pa.R.E. 804(b)(2) is similar to F.R.E. 804(b)(2), except that the Pennsylvania rule applies in all cases, not just in homicide cases and civil actions. This is a departure from prior Pennsylvania law, which applied the exception only to statements made by the victim in a criminal prosecution for homicide.

The rationale for this exception from the hearsay rule was set forth in Commonwealth v. Smith, 454 Pa. 515, 314 A.2d 224, 225 (Pa. 1973):

The reliability of a dying declaration is provided not by an oath, nor [sic] by cross-examination; rather, its admissibility is based on the premise that no one “who is immediately going into the presence of his Maker will do so with a lie upon his lips.” Luch, L.J., Regina v. Osman, 15 Cox C.C. 1, 3 (Eng. 1881).

The common law traditionally, but illogically, excepted a dying declaration from the hearsay rule in a criminal prosecution for homicide, but not in a criminal prosecution for another crime, or in a civil case. Prior Pennsylvania case law followed the common law. See Commonwealth v. Antonini, 69 A.2d 436 (Pa. Super. 1949).

Reasoned analysis dictated a change. If a dying declaration is trustworthy enough to be introduced against a defendant charged with murder, it is trustworthy enough to be introduced against a defendant charged with attempted murder, robbery, or rape. It is also trustworthy enough to be introduced against a party in a civil case.

In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004), the Supreme Court interpreted the Confrontation Cause in the Sixth Amendment of the United States Constitution to prohibit the introduction of “testimonial” hearsay from an unavailable witness against a defendant in a criminal case unless the defendant had an opportunity to confront and cross-examine the declarant, regardless of its exception from the hearsay rule. However, in footnote 6, the Supreme Court said that there may be an exception, sui generis, for those dying declarations that are testimonial.

(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. In a criminal case, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

Comment: The first sentence of Pa.R.E. 804(b)(3) is identical to the first sentence of F.R.E. 804(b)(3). The second sentence differs by requiring corroborating circumstantial evidence of trustworthiness before an assertion against the declarant's penal interest can be introduced by either side in a criminal case. The federal formulation requires such corroboration only when the statement is offered to exculpate the defendant.

Pa.R.E. 804(b)(3) is consistent with prior Pennsylvania decisional law. See Rudisill v. Cordes, 5 A.2d 217 (Pa. 1939) (civil case); Commonwealth v. Williams, 640 A.2d 1251, 1263 n. 8 (Pa. 1994) (criminal case).

(4) Statement of personal or family history. A statement, made before the controversy arose:

(A) concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated; or

(B) concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage, or was so intimately associated with the other's family as to be likely to have accurate information concerning the matter declared.

Comment: Pa.R.E. 804(b)(4) differs from F.R.E. 804(b)(4) by requiring the statement of pedigree to be made before the controversy arose, i.e, ante litem motam.

Pa.R.E. 804(b)(4) expands prior Pennsylvania decisional law in two respects:

1. The exception applies if the declarant is unavailable, as “unavailability” is defined in Pa.R.E. 804(a). Formerly, it was required that the declarant be dead. See In re McClain's Estate, 392 A.2d 1371 (Pa. 1978). The need for the evidence is the same, whether the declarant is dead or unavailable to testify for one of the other reasons delineated in Pa.R.E. 804(a).

2. Under Pa.R.E. 804(b)(4)(B), the declarant need not be related to the person of whom he or she spoke. It is sufficient that the declarant be so closely associated with the person's family as to have accurate information. Formerly, a familial relationship was required. See In re Garrett's Estate, 89 A.2d 531 (Pa. 1952). A statement of this type by a person closely associated with the person or family of which he or she spoke is likely to be sufficiently reliable to justify an exception to the hearsay rule.

Pennsylvania retains the requirement that the statement must be made before the controversy arose. See In re McClain's Estate, supra; In re Garrett's Estate, supra.

(5) Other exceptions [not adopted].

Comment: Pennsylvania has not adopted F.R.E. 804(b)(5) (now F.R.E. 807). The Federal rule is often called the residual exception to the hearsay rule.

(6) Forfeiture by wrongdoing. A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

Comment: Pa.R.E. 804(b)(6) is identical to F.R.E. 804(b)(6). This exception is new to Pennsylvania law.