A New Hearsay Exception?
The Committee on Rules of Evidence has proposed a brand new hearsay exception (.pdf) for "Written, Adopted or Electronically Recorded Statement[s]." The new exception -- if adopted by the Pennsylvania Supreme Court -- would except from exclusion as hearsay:
A Statement made at or near the time of the reported acts, events, or conditions, that was written by the declarant, adopted in writing by the declarant, or electronically recorded, provided that the statement is disclosed in a timely manner.
Proposed Rule 803.1(2). As the Committee concedes, the proposed exception "has no exact counterpart in the Federal Rules of Evidence, or in prior Pennsylvania law."
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A proposed comment to the new rule clarifies that the phrase "at or near the time of the reported events" is intended as a narrow window. Because "[t]he rule is not intended to encourage the creation of statements as a substitute or supplement for the declarant's testimony at trial . . . a statement prepared weeks or more after the reported acts . . . should not generally be treated" as being covered by the exception.
What's the new rule all about? It appears it is being proposed mainly to address witness intimidation issues that arise in criminal trials, where statements meeting the criteria of proposed Rule 803.1(2) are routinely taken by investigators. Will the rule have any impact upon civil litigation? Of course. As the Committee points out, where a qualifying statement exists, the rule would permit a court to bypass inquiries that normally accompany the admission into evidence of prior written statements, such as inconsistency, insufficient recollection or the scope of a limiting instruction.
Parting Shot: I'm not sure the new rule provides any increased utility as concerns the witness intimidation issue. If a witness gives a statement to the police only to testify "I don't remember" at trial (an example offered by the Committee), the statement would be admisssible as a prior inconsistent statement under 803.1(1), no? What's the point, then? The Committee suggests it is "to simplify the process for admission of a valuable kind of evidence," but, really, how difficult is it to apply the prior inconsistent statement rule in such circumstances? Am I missing something?
