Opinion
CRIMINAL PROCEDURAL RULES DOCKET NO. 479
08-31-2016
IN RE: ORDER REVISING THE COMMENT TO RULE 500 OF THE PENNSYLVANIA RULES OF CRIMINAL PROCEDURE
ORDER
AND NOW, this 31st day of August, 2016, upon the recommendation of the Criminal Procedural Rules Committee; the proposal having been published before adoption at 45 Pa.B. 3810 (July 18, 2015), and in the Atlantic Reporter (Third Series Advance Sheets, Vol. 114), and a Final Report to be published with this ORDER:
IT IS ORDERED pursuant to Article V, Section 10 of the Constitution of Pennsylvania that the revision of the Comment to Pennsylvania Rule of Criminal Procedure 500 is approved in the attached form.
This ORDER shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective October 1, 2016. Additions to the rules are shown in bold and are underlined.
Deletions from the rules are shown in bold and brackets. RULE 500. PRESERVATION OF TESTIMONY AFTER INSTITUTION OF CRIMINAL PROCEEDINGS. (A) BY COURT ORDER.
(1) At any time after the institution of a criminal proceedings, upon motion of any party, and after notice and hearing, the court may order the taking and preserving of the testimony of any witness who may be unavailable for trial or for any other proceeding, or when due to exceptional circumstances, it is in the interests of justice that the witness' testimony be preserved.(B) BY AGREEMENT OF THE PARTIES.
(2) The court shall state on the record the grounds on which the order is based.
(3) The court's order shall specify the time and place for the taking of the testimony, the manner in which the testimony shall be recorded and preserved, and the procedures for custody of the recorded testimony.
(4) The testimony shall be taken in the presence of the court, the attorney for the Commonwealth, the defendant(s), and defense counsel, unless otherwise ordered.
(5) The preserved testimony shall not be filed of record until it is offered into evidence at trial or other judicial proceeding.
(1) At any time after the institution of a criminal proceeding, the testimony of any witness may be taken and preserved upon the express written agreement of the attorney for the Commonwealth, the defendant(s), and defense counsel.
(2) The agreement shall specify the time and place for taking the testimony, the manner in which the testimony shall be recorded and preserved, and the procedures for custody of the recorded testimony.
(3) The testimony shall be taken in the presence of the attorney for the Commonwealth, the defendant(s), and defense counsel, unless they otherwise agree.
(4) The agreement shall be filed of record.
(5) The preserved testimony shall not be filed of record until it is offered into evidence at trial or other judicial proceeding.
COMMENT: This rule is intended to provide the means by which testimony may be preserved for use at a subsequent stage in the criminal proceedings. When testimony is to be preserved by videotape recording, see also Rule 501.
This rule does not address the admissibility of the preserved testimony. All questions of admissibility must be decided by the court. See, e.g., Judicial Code § 5917, 42 Pa.C.S. § 5917 (1982); Commonwealth v. Scarborough, 421 A.2d 147 (Pa. 1980); Commonwealth v. Stasko, 370 A.2d 350 (Pa. 1977).
"May be unavailable," as used in paragraph (A), is intended to include situations in which the court has reason to believe that the witness will be unable to be present or to testify at trial or other proceedings, such as when the witness is dying, or will be out of the jurisdiction and therefore cannot be effectively served with a subpoena, or is elderly , frail, or demonstrates the symptoms of mental infirmity or dementia, or may become incompetent to testify for any other legally sufficient reason.
Under paragraph (A)(4), a judge should preside over the taking of testimony. The court, however, may order that testimony be taken and preserved without a judge's presence when exigent circumstances exist or the location of the witness renders a judge's presence impracticable. Furthermore, nothing in this rule is intended to preclude counsel, the defendant(s), and the judge from agreeing on the record that the judge need not be present. Paragraph (B)(3) permits the attorney for the Commonwealth, the defendant(s), and defense counsel to determine among themselves whether a judge should be present during the taking of testimony. That determination should be made a part of the written agreement required by paragraph (B)(1).
Nothing is this rule is intended to preclude the defendant from waiving his or her presence during the taking of testimony.
The means by which the testimony is recorded and preserved are within the discretion of the court under paragraph (A) and the parties under paragraph (B), and may include the use of electronic or photographic techniques such as videotape. There are, however, additional procedural requirements for preservation of testimony by videotape recording mandated by Rule 501.
The party on whose motion testimony is taken should normally have custody of and be responsible for safeguarding the preserved testimony. That party should also promptly provide a copy of the preserved testimony to any other party upon payment of reasonable costs.
When testimony is taken under this rule, the proceeding should be adversarial, and afford the parties full opportunity to examine and cross-examine the witness. Counsel should not reserve objections for time of trial.
Paragraphs (A)(5) and (B)(5) are intended to guard against pretrial disclosure of potentially prejudicial matters.
For definition of "court," see Rule 103.
NOTE: Rule 9015 adopted November 8, 1982, effective January 1, 1983; amended March 22, 1989, effective July 1, 1989; renumbered Rule 500 and amended March 1, 2000, effective April 1, 2001[.] ; Comment revised August 31 , 2016, effective October 1, 2016.
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COMMITTEE EXPLANATORY REPORTS:
Final Report explaining the March 1 , 2000 reorganization and renumbering of the rules published with the Court's Order at 30 Pa .B. 1478 (March 18 , 2000).
Final Report explaining the August 31 , 2016 Comment revision refining the definition of "unavailable" to include the elderly published with the Court's Order at 46 Pa.B. (___ , 2016).
FINAL REPORT
The Committee's Final Reports 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.
Revision to the Comment to Pa .R.Crim.P. 500
AVAILABILITY OF THE ELDERLY TO TESTIFY
On August 31, 2016, effective October 1, 2016, upon the recommendation of the Criminal Procedural Rules Committee, the Court approved the revision of the Comment to Rule of Criminal Procedure 500 (Preservation of Testimony after Institution of Criminal Proceedings) to clarify that the Rule 500 procedures were available in circumstances where a witness is elderly, frail or demonstrating symptoms of mental infirmity or dementia.
In April 2013, the Court created the Elder Law Task Force to study the issues of access to justice being faced by older Pennsylvanians. In November 2014, the Task Force issued a report with a number of recommendations intended to enhance the way Pennsylvania elders interact with the state court system and are protected in cases involving abuse, neglect, guardianship, conservatorship and other matters. Based on the recommendation of the Task Force, the Court established an Office of Elder Justice in the Courts to implement many of the recommendations in the report as well as an Advisory Council on Elder Justice in the Courts to serve as the judiciary's liaison to the executive and legislative branches. In addition, in May 2015, the Court directed the Committee to consider the recommendations of the Elder Law Task Force that related to criminal procedure.
See Elder Law Task Force Report, http://www.pacourts.us/courts/supreme-court/committees/supreme-court-boards/elder-law-task-force.
One of the Task Force's recommendations related to criminal procedural issues is the suggestion that the Comment to Pa.R.Crim.P. 500 (Preservation of Testimony) be revised "to help ensure the testimony of elder victims and witnesses in criminal cases can be preserved." Rule 500 provides procedures for the pre-trial preservation of testimony of those witnesses who may be unavailable to testify for trial or other proceedings or where, due to exceptional circumstances, it is in the interests of justice to preserve the witness' testimony. Consistent with the Task Force's recommendation, the Advisory Council suggested to the Court that the Rule 500 Comment be revised to further define the phrase "exceptional circumstances" to include the circumstances where the victim is an elder, is frail, or demonstrates the symptoms of mental infirmity or dementia, creating the risk that they will not be able to testify in the future.
See Recommendation 36, Elder Law Task Force Report, page 236. --------
The Committee considered that the language of the Comment already is broad enough to cover the situation where a victim/witness would be unavailable to testify due to age-related incapacity such as frailty or dementia. However, the Committee concluded that it would be helpful to explicitly state in the Comment that these conditions are contemplated by the rule. Therefore, the language of the third paragraph of the Comment has been revised as follows:
"May be unavailable," as used in paragraph (A), is intended to include situations in which the court has reason to believe that the witness will be unable to be present or to testify at trial or other proceedings, such as when the witness is dying, or will be out of the jurisdiction and therefore cannot be effectively served with a subpoena, or is elderly, frail or demonstrating symptoms of mental infirmity or dementia, or may become incompetent to testify for any other legally sufficient reason. The revision also adds the word "other" before "legally sufficient reason" to the final phrase of the paragraph since mental infirmity and dementia are also "legally sufficient reasons" for determining unavailability.