THE COURTS
[234 PA. CODE CH. 4000]
Order Amending Rule 4002 and Revising the Comment to Rule 4001; No. 253, Criminal Procedural Rules Doc. No. 2
[29 Pa.B. 4860] The Criminal Procedural Rules Committee has prepared a Final Report explaining the September 3, 1999 amendment to Rule of Criminal Procedure 4002 (Release Criteria), and revision of the Comment to Rule 4001 (Bail Before Verdict). These changes align the Criminal Rules with the 1998 amendment to article I, § 14 of the Pennsylvania Constitution. The Final Report follows the Court's Order.
Order Per Curiam:
Now, this third day of September, 1999, upon the recommendation of the Criminal Procedural Rules Committee, this proposal having been submitted without publication pursuant to Pa.R.J.A. 103 (a)(3), 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 Rule of Criminal Procedure 4002 is amended, and the Comment to Rule 4001 is revised, all in the following form.
This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective immediately.
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
PART I. GENERAL
CHAPTER 4000. BAIL
PART I. PROCEDURES FOR PRE-VERDICT RELEASE Rule 4001. Bail Before Verdict.
[(a)] (A) Bail before verdict shall be set in all cases as permitted by law. Whenever bail is refused, the bail authority shall state in writing or on the record the reasons for that determination.
[(b)] (B) A defendant may be admitted to bail on any day and at any time.
Official Note: Former Rule 4001 adopted July 23, 1973, effective 60 days hence, replacing prior Rule 4002; amended January 28, 1983, effective July 1, 1983; Comment revised September 23, 1985, effective January 1, 1986; rescinded September 13, 1995, effective January 1, 1996, and replaced by present Rule 4001. Present Rule 4001 adopted September 13, 1995, effective January 1, 1996. The January 1, 1996 effective date extended to April 1, 1996; the April 1, 1996 effective date extended to July 1, 1996; Comment revised September 3, 1999, effective immediately.
Comment This rule carries over the provisions of former Rule 4001 (Bail Before Verdict).
Article I, § 14 of the Pennsylvania Constitution was amended in 1998 to read: ''All prisoners shall be bailable by sufficient sureties, unless for capital offenses or for offenses for which the maximum sentence is life imprisonment or unless no condition or combination of conditions other than imprisonment will reasonably assure the safety of any person and the community when the proof is evident or presumption great; and the privilege of the writ of habeas corpus shall not be suspended, unless when in case of rebellion or invasion the public safety may require it.''
For the minor judiciary's authority to set bail, see the Judicial Code, 42 Pa.C.S. §§ 1123(a)(5), 1143(a)(1), and 1515(a)(4).
See Commonwealth v. Truesdale, 296 A.2d 829 (Pa. 1972), concerning the bail authority's discretion to refuse bail under paragraph [(a)] (A).
Under paragraph [(a)] (A), whenever the bail authority is a judicial officer in a court not of record, that officer must set forth in writing his or her reasons for refusing bail, and the written reasons must be included with the docket transcript.
Committee Explanatory Reports:
Final Report explaining the provisions of the new rule published with the Court's Order at 25 Pa.B. 4116 (September 30, 1995).
Final Report explaining the 1999 Comment revision concerning the 1998 constitutional amendment providing for preventive detention published with the Court's Order at 29 Pa.B. 4862 (September 18, 1999).
Rule 4002. Release Criteria.
[(a)] (A) To determine whether to release a defendant, and what conditions, if any, to impose, the bail authority shall consider all available information, [but only] as that information is relevant to the defendant's appearance or nonappearance at subsequent proceedings, or compliance or noncompliance with the conditions of the bail bond, including information about:
(1) the nature of the offense charged and any mitigating or aggravating factors that may bear upon the likelihood of conviction and possible penalty;
(2) the defendant's employment status and history, and financial condition;
(3) the nature of the defendant's family relationships;
(4) the length and nature of the defendant's residence in the community, and any past residences;
(5) the defendant's age, character, reputation, mental condition, and whether addicted to alcohol or drugs;
(6) if the defendant has previously been released on bail, whether he or she appeared as required and complied with the conditions of the bail bond;
(7) whether the defendant has any record of flight to avoid arrest or prosecution, or of escape or attempted escape;
(8) the defendant's prior criminal record;
(9) any use of false identification; and
(10) any other factors relevant to whether the defendant will appear as required and comply with the conditions of the bail bond.
[(b)] (B) The decision of a defendant not to admit culpability or not to assist in an investigation shall not be a reason to impose additional or more restrictive conditions of bail on the defendant.
Official Note: Previous Rule 4002, formerly Rule 4003, adopted November 22, 1965, effective June 1, 1966; renumbered Rule 4002 and amended July 23, 1973, effective 60 days hence; Comment revised January 28, 1983, effective July 1, 1983; rescinded September 13, 1995, effective January 1, 1996, and not replaced. PresentRule 4002 adopted September 13, 1995, effective January 1, 1996. The January 1, 1996 effective date extended to April 1, 1996; the April 1, 1996 effective date extended to July 1, 1996; amended September 3, 1999, effective immediately.
* * * * * Committee Explanatory Reports:
Final Report explaining the provisions of the new rule published with the Court's Order at 25 Pa.B. 4116 (September 30, 1995).
Final Report explaining the 1999 amendment concerning the 1998 constitutional amendment providing for preventive detention and deleting ''but only'' published with the Court's Order at 29 Pa.B. 4862 (September 18, 1999).
FINAL REPORT1
Amendment to Pa.R.Crim.P. 4002 (Release Criteria); Revision of the Comment to Rule 4001 (Bail Before Verdict)
Preventive Detention On September 3, 1999, upon recommendation of the Criminal Procedural Rules Committee, the Supreme Court of Pennsylvania adopted the amendments to Rule 4002 (Release Criteria), and approved the revision of the Comment to Rule 4001 (Bail Before Verdict). These changes, which are effective immediately, align the Criminal Rules with the 1998 amendment to article I, § 14 of the Pennsylvania Constitution.
The Committee reviewed the new provisions of article I, § 14, and agreed that some changes to Chapter 4000 (Bail) were necessary. We contemplated providing procedures in the Criminal Rules for making bail determinations under the amendment similar to the procedures in the Federal Rules, see Fed. R. Crim. P. 43. The members pointed out, however, that (1) the Pennsylvania Constitutional provisions concerning bail differ from the bail provisions in the 8th amendment to the U. S. Constitution, and (2) since the Pennsylvania constitutional amendment was approved, several individuals are questioning its interpretation. In view of these concerns, we agreed that, until the courts address these questions, the Criminal Rules should be changed only to acknowledge the amendment. Accordingly, the Court amended Rule 4002 by deleting the language ''but only'' in paragraph (A) to make it clear that in making the determination to release the defendant, the bail authority may consider whether conditions exist that would reasonably assure the safety of any person and the community when the proof is evident or the presumption great. The court also approved a correlative revision of the Rule 4001 Comment that recognizes the 1998 amendment to article I, § 14 of the Pennsylvania Constitution by setting forth the language of the amendment.
[Pa.B. Doc. No. 99-1569. Filed for public inspection September 17, 1999, 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 Final Reports.
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