The state Supreme Court has re- leased the restyled Pennsylvania Rules  of  Evidence,  an  effort  that may not reflect any substantive changes to the law but does make the rules easier to understand while keeping them consistent with their federal counterparts.

The new rules follow the work of a state committee that “monitored the progression” of a federal project, which likewise restyled the evidentiary rules governing the federal courts, which were implemented in late 2011.

The changes have been characterized as “stylistic,” meaning they do not intend to alter the law.  However, when the new rules are adopted March 18, they will nonetheless carry with them the force of law, and it will be the new rules that attorneys cite in court filings going  forward.

In short, there’s nothing “new” about the rules, but attorneys might want to take a rainy Sunday to check out the new language.
The committee deemed a proposed change “substantive,” and therefore avoided it, if it could lead to a different result on an admissibility question or if it could lead to a change in the procedure of the way admissibility decisions are made. The committee also avoided making changes to a rule’s structure or the method of analyzing it if such “fundamentally changes how courts and litigants have thought about, or argued about, the rule.” However, the inverse wasn’t necessarily true.

As the project’s academic adviser pointed out, if lawyers and judges have long read a certain rule to mean one thing that the rule’s previous  phrasing did not explicitly  say,  then  the  new state rule could be restyled to  “reflect the way everybody read them,” said Leonard Packel, a retired professor of Villanova Law School and the committee’s reporter.
With most of the rules, it seemed, the restyling was simply clean-up, and it often followed the lead of the federal rules.

Take, for example, the rule on hear-say. The content of the definition in this section, found at Rule 801, is essentially the same from the old rule to the new one. The old version said:  “‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” But the new rule is broken   into two parts and looks simpler next to its predecessor.
It reads: “‘Hearsay’ means a statement that (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.” The rule progressed similarly in the state and federal re-stylings.

Asked if there were any changes  to the Pennsylvania rules  that  stood  out to him as more significant than others, Packel said no.
“It’s something that drafters of this groove on but nobody else in the world cares a bit about,” Packel said. “It’s sort of like the guys who fix the internal part on your automobile. You use it every- day, but you don’t know what goes on inside.” Another example is Rule 803(25), which was formerly titled “Admission by Party-Opponent” but is now called “An Opposing Party’s Statement.”

The difference between the two titles for the rule, which allows a party’s statement into court despite his or her absence, is merely a matter of semantics. But Maureen McBride of Lamb McErlane in West Chester, Pa., added it would “behoove” attorneys to review the new rules and be familiar with them, even if they simply reflect a change in lexicon. McBride is on the committee but couched her comments as being in her capacity as a practicing attorney; committee members cannot comment on behalf of the committee, she said. The committee also adjusted down a number of oft-invoked rules.

Rule 401, on relevance, now reads a little shorter: “Evidence is relevant if: (a) it has any tendency to make a fact more or  less  probable  than  it  would  be  with- out  the  evidence;  and  (b)  the  fact  is  of consequence in determining the action.” Rule 705 was shortened to say:  “If an expert states an opinion, the expert must state the facts or data on which the opinion is based.” The committee noted Rule 705  is also an example of one that differs “significantly” from the federal rule on the subject.

As indicated in the rule’s comments, the federal rule generally does not re- quire an expert witness to “disclose the facts upon which an opinion is based prior to expressing the opinion.” Rather, the comments note, a lawyer cross-examining a witness in federal court has the burden to probe him or her on the basis of his or her opinion.

Along with the stylistic changes, Packel noted the committee reduced the rules’ accompanying comments by about half. The comments to the state rules, largely in place to explain differences between state and federal rules, came alongside the first codification of state rules of evidence back in 1998.

But, as Packel and a report that was released with the new rules explained, many of the comments are now better suited for the Pennsylvania legal history books. “The committee recognized the value of such references when the Pennsylvania Rules of Evidence were adopted in 1998, especially where the federal rules and Pennsylvania rules differ,” the report said. “However, the rules have been in existence now for more than 12 years and incorporated into judicial proceedings and practice. The committee believes that many references contained in the comments have become historical.”

There a state rule and federal rule remain dissimilar, the committee recommended that references to state common law on evidence remain in its accompanying comment. A similar committee restyled the Federal Rules of Evidence starting in 2007 and those rules went into effect in December 2011.

Written by By Ben Present Of the Law WeeklyTuesday, February 5, 2012
Ben Present can be contacted at 215- 557-2315 or bpresent@alm.com.