FINAL REPORT1
REVISION OF THE COMMENT TO RULE OF EVIDENCE 613
AMENDMENT OF RULES OF EVIDENCE 803.1 & 804
On March 1, 2017, effective April 1, 2017, upon the joint recommendation of the
Committee on Rules of Evidence, the Court adopted a revision of the Comment to
Pa.R.E. 613 and amendment of Pa.R.E. 803.1 to add a new paragraph (4) and Pa.R.E.
804(a)(3).
As described in the Publication Report, the Committee proposed amendments to
protect against the “turncoat witness” who once provided a statement, but now seeks to
deprive the use of this evidence at trial by feigning memory loss. “[T]he unwilling
witness often takes refuge in a failure to remember.” 3A J. Wigmore, Evidence § 1043,
at 1061.
New paragraph (4) to Pa.R.E. 803.1 excepts from the hearsay rule a prior
statement when the declarant-witness claims an inability to remember the substance of
the statement and the prior statement was given under circumstances identical to
paragraph (1).
Pa.R.E. 804(a)(3), which considers a declarant unavailable to testify as a witness
if the declarant testifies to not remembering the subject matter at issue, has been
amended to recognize the new exception in Pa.R.E. 803.1(4). However, this new
exception is not applicable if the court finds the claimed inability to remember to be
credible. A witness with a credible inability to remember the subject matter at issue may
be subject to Pa.R.E. 804.
Notwithstanding a witness’s claimed memory loss about the subject matter of the
prior statement, the witness must still be subject to cross-examination about the
statement pursuant to Pa.R.E. 803.1. Further, readers should note that these
amendments do not attempt to codify or reflect requirements under the Confrontation
Clause. See Pa.R.E. 802, Comment.
Relatedly, the Comment to Pa.R.E. 613 was revised to clarify that the criteria set
forth in Pa.R.E. 803.1(1)(A)-(C) is not applicable to the use of inconsistent statements
for impeachment pursuant to Rule 613.
1
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.