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PA Bulletin, Doc. No. 16-149



[ 234 PA. CODE CH. 8 ]

Order Amending Rule 801 of the Rules of Criminal Procedure; No. 468 Criminal Procedural Rules Doc.

[46 Pa.B. 554]
[Saturday, January 30, 2016]


Per Curiam

And Now, this 11th day of January, 2016, upon the recommendation of the Criminal Procedural Rules Committee; the proposal having been published before adoption at 44 Pa.B. 8011 (December 27, 2014), and in the Atlantic Reporter (Third Series Advance Sheets, Vol. 104), 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 amendment of Pennsylvania Rule of Criminal Procedure 801 is approved in the following form.

 This Order shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective April 1, 2016.

 Mr. Justice Eakin did not participate in the decision of this matter.

Annex A



PART A. Guilt and Penalty Determination Procedures

Rule 801. Qualifications for Defense Counsel in Capital Cases.

 In all cases in which the [district] attorney for the Commonwealth has filed a Notice of Aggravating Circumstances pursuant to Rule 802, before an attorney may participate in any stage of the case either as retained or appointed counsel, the attorney must meet the educational and experiential criteria set forth in this rule.

*  *  *  *  *


*  *  *  *  *

 (b) Training in capital cases shall include, but not be limited to, training in the following areas:

*  *  *  *  *

 (x) unique issues relating to those charged with capital offenses when under the age of 18[.]; and

*  *  *  *  *


*  *  *  *  *

 The educational and experience requirements of the rule may not be waived by the trial or appellate court. A court may allow representation by an out-of-state attorney pro hac vice, if satisfied the attorney has equivalent experience and educational qualifications, and is a member in good standing of the Bar of the attorney's home jurisdiction. See Pa.B.A.R. 301.

For purposes of the requirements of paragraph (1), experience in the role of either prosecutor or defense counsel should be considered.

 An attorney may serve as ''second chair'' in a capital case without meeting the educational or experience requirements of this rule. ''Second chair'' attorneys may not have primary responsibility for the presentation of significant evidence or argument, but may present minor or perfunctory evidence or argument, if deemed appropriate in the discretion of the court. Service as a ''second chair'' in a homicide case will count as a trial for purposes of evaluating that attorney's experience under paragraph (1)(c) of this rule.

*  *  *  *  *

Official Note: Adopted June 4, 2004, effective November 1, 2004; amended April 13, 2007, effective immediately; amended October 1, 2012, effective November 1, 2012; amended December 10, 2013, effective February 10, 2014; amended January 11, 2016, effective April 1, 2016.

Committee Explanatory Reports:

*  *  *  *  *

 Final Report explaining the December 10, 2013 change to the Comment published with the Court's Order at 43 Pa.B. 7546 (December 28, 2013).

Final Report explaining the January 11, 2016 amendments correcting a reference to the prosecutor and clarifying the experiential requirements of the rule published with the Court's Order at 46 Pa.B. 555 (January 30, 2016).


Amendment of Pa.R.Crim.P. 801

Qualifications of Capital Case Counsel; Prosecutorial Experience

 On January 11, 2016, effective April 1, 2016, upon the recommendation of the Criminal Procedural Rules Committee, the Court adopted the amendment of Rule of Criminal Procedure 801 (Qualifications for Defense Counsel in Capital Cases) to correct the description of the prosecutors to whom the rule is applicable and to clarify that experience as a prosecutor should be considered to satisfy the experiential requirements of the rule.

 Rule 801 (Qualifications for Defense Counsel in Capital Cases) was adopted on June 4, 2004.2 Rule 801 provides standards for experience and continuing legal education required of criminal defense counsel representing defendants in proceedings involving possible capital punishment, including pretrial, trial, post-conviction, and appellate proceedings. Included in these standards is the requirement that, before an attorney may represent a defendant in a capital case, either as retained or appointed counsel, he or she must serve as lead or co-counsel in a minimum of 8 significant cases which were tried to verdict before a jury.3 A ''significant case'' is defined in the rule as a case involving a charge of murder, including manslaughter and vehicular homicide, or a felony of the first or second degree.

 The Committee was asked whether experience acquired as a prosecutor could be counted toward the requirements of Rule 801(1). Although this is not explicitly stated in the rule, it seems logical that the experience acquired in significant cases either as a prosecutor or as defense counsel be counted. Even though the function of a prosecutor is obviously different, many of the trial and practice skills are complementary. Such an interpretation would provide a reasonable inclusiveness in an already limited pool of counsel. Furthermore, this is the common practice in most jurisdictions. Therefore, the Comment to Rule 801 has been revised to indicate that such experience be considered in determining whether counsel qualifies under the rule.

 The Committee also received a suggestion to broaden the language of the initial paragraph of the rule regarding the filing of the notice of aggravating circumstances from the term ''district attorney'' to ''attorney for the Commonwealth.'' There are times when the Office of the Attorney General prosecutes a murder as a capital offense, either arising out of their primary jurisdiction or after a case has been referred to them by a district attorney. Therefore, the terminology in the rule has been changed to this effect.

[Pa.B. Doc. No. 16-149. Filed for public inspection January 29, 2016, 9:00 a.m.]


1  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.

2  Rule 801 was not developed originally by the Committee but rather was the product of a special ad hoc group.

3  Representation in appellate proceedings requires prior appellate or post-conviction representation in a minimum of 8 significant cases.

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