THE COURTS
Title 234--RULES OF CRIMINAL PROCEDURE
[234 PA. CODE CH. 1]
Rule 118; Use of Two-Way Simultaneous Audio-Visual Communication in Criminal Proceedings
[32 Pa.B. 2197] The Criminal Procedural Rules Committee is planning to recommend the Supreme Court of Pennsylvania adopt new Pa.R.Crim.P. 118 (Use of Two-Way Simultaneous Audio-Visual Communication in Criminal Proceedings). New Rule 118 would authorize a court or issuing authority to use two-way simultaneous audio-visual communication in criminal proceedings. This proposal has not been submitted for review by the Supreme Court of Pennsylvania.
The following explanatory Report highlights the Committee's considerations in formulating this proposal. Please note that the Committee's Reports should not be confused with the official Committee Comments to the rules. Also note the Supreme Court does not adopt the Committee's Comments or the contents of the explanatory Reports.
The text of the proposed new rule precedes the Report.
We request interested persons submit suggestions, comments, or objections concerning this proposal to the Committee through counsel, Anne T. Panfil, Chief Staff Counsel, Supreme Court of Pennsylvania, Criminal Procedural Rules Committee, P. O. Box 1325, Doylestown, PA 18901, fax: (717) 795-2106, e-mail: criminal.rules@ supreme.court.state.pa.us no later than Monday, June 17, 2002.
JOSEPH P. CONTI,
Chair
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
CHAPTER 1. SCOPE OF RULES, CONSTRUCTION AND DEFINITIONS, LOCAL RULES
PART A. BUSINESS OF THE COURTS Rule 118. Use Of Two-Way Simultaneous Audio-Visual Communication In Criminal Proceedings.
(A) The court or issuing authority may use two-way simultaneous audio-visual communication at any criminal proceeding except:
(1) preliminary hearings;
(2) trials;
(3) sentencing hearings;
(4) parole, probation, and intermediate punishment revocation hearings;
(5) ARD revocation hearings; and
(6) any other proceeding in which the defendant has a right to appear.
(B) When a criminal proceeding is conducted using two-way simultaneous audio-visual communication, the defendant must be permitted to communicate fully and confidentially with defense counsel immediately prior to and during the proceeding.
Comment This rule was adopted in 2002 to make it clear that unless the case comes within one of the exceptions in paragraph (A), the court or issuing authority may use two-way simultaneous audio-visual communication in any criminal proceeding. Two-way simultaneous audio-visual communication is a type of advanced communication technology as defined in Rule 103.
This rule is not intended to preclude the use of advanced communication technology for the preservation of testimony as permitted by Rules 500 and 501.
Nothing in this rule is intended to limit any right of a defendant to waive his or her presence at a criminal proceeding in the same manner as the defendant may waive other rights. See, e.g., Rule 602 Comment.
See Rule 542 for the procedures governing preliminary hearings.
See Chapter 6 for the procedures governing trials.
See Chapter 3 for the procedures governing ARD.
See Chapter 7 for the procedures governing sentencing hearings.
See Rule 708 for the procedures governing revocation of probation, intermediate punishment, and parole.
The paragraph (A)(4) reference to revocation hearings addresses Gagnon II-type probation (Gagnon v. Scarpelli, 411 U.S. 778 (1973)) and parole (Morrissey v. Brewer, 408 U.S. 471 (1972)) revocation hearings, and is not intended to prohibit the use of two-way simultaneous audio-visual communication in hearings to determine probable cause (Gagnon I).
Official Note: New Rule 118 adopted ______, effective ______.
Committee Explanatory Reports:
Report explaining proposed new Rule 118 published at 32 Pa.B. 2198 (May 4, 2002).
REPORT
Proposed New Pa.R.Crim.P. 118
USE OF TWO-WAY SIMULTANEOUS AUDIO-VISUAL COMMUNICATION IN CRIMINAL PROCEEDINGS I. Background
This proposal is the fifth in a series of proposals the Committee has developed that would permit the use of advanced communication technology (ACT) in criminal proceedings. In making the proposals, the Committee recognizes that the implementation of provisions for the use of ACT in criminal proceedings furthers the goals of achieving statewide, uniform procedures in criminal proceedings, providing quick and efficient administration of justice, and bringing convenience to the parties.1
Following the publication of these proposals, and through various communications to the Committee,2 we became aware that the uses of ACT are expanding throughout Pennsylvania. To determine how widespread the use of ACT is, and in which criminal proceedings ACT is being used, the Committee conducted a survey of the president judges concerning the use of ACT in their judicial districts.3 The responses to the survey indicated that several judicial districts rapidly are moving ahead in this area, but several others are reluctant to invest the resources in ACT until the Criminal Rules provide guidance for its use. Other judicial districts are not using ACT because of concerns about the ''face-to face'' constitutional provision.4 In view of the survey responses and the general communications concerning when ACT should be used in criminal proceedings, the Committee agreed that it was imperative to have a general rule governing the use of ACT in all criminal proceedings.
II. Discussion of Proposed New Rule 118
One issue of concern in developing the earlier ACT-related proposals was how to safeguard the defendant's rights, including the defendant's participation in the defense of his or her case and access to defense counsel. The Committee agreed that, when the criminal proceeding is one that requires rigid protection of the defendant's rights and the integrity and fairness of the judicial process, any rules addressing this type of procedure must require that the type of ACT employed for the criminal proceeding must be one capable of providing two-way simultaneous audio-visual communication, and allow for confidential communications between defendant and defendant's counsel.
When developing the procedures for the new rule, the Committee agreed that the proposed new rule should preserve the status quo, i.e., the new rule should not create nor abridge existing rights of the defendant to appear at a criminal proceeding; rather, the new rule merely should be permissive of the use of two-way simultaneous audio-visual communication in criminal proceedings. In addition, the Committee recognized that the rule also should not alter a defendant's right to effectively waive his or her appearance at a hearing, nor address whether the parties must agree to its use. Finally, the Committee agreed that although the scope of the new rule should be broad, the rule should be clear that in those criminal proceedings in which the use of two-way simultaneous audio-visual communication would not be appropriate, no other form of ACT may be used to conduct the proceeding. Accordingly, the Committee is proposing a new Rule 118 that generally would authorize a court or issuing authority to use two-way simultaneous audio-visual communication in criminal proceedings, and would enumerate the criminal proceedings in which using any form of ACT to conduct the proceeding would be prohibited.
The new rule would be divided into two paragraphs. Paragraph (A) would provide the general rule that a court or issuing authority may use two-way simultaneous audio-visual communication at any criminal proceeding. Paragraph (A) also provides six enumerated exceptions to the general rule. These exceptions are (1) preliminary hearings, (2) trials, (3) sentencing hearings, (4) parole, probation, and intermediate punishment revocation hearings, (5) ARD revocation hearings, and (6) any other proceeding in which the defendant has a right to appear.
Paragraph (B) makes it clear that when a criminal proceeding is conducted using two-way simultaneous audio-visual communication, the defendant must be permitted to communicate fully and confidentially with his or her defense counsel immediately prior to and during the proceeding. This language is consistent with the language included in the Committee's earlier ACT-related proposals and recognizes the importance of the defendant's access to defense counsel, and the confidentiality of communications between the defendant and defense counsel.
The Comment would:
* highlight that the criminal proceedings contemplated by the rule require two-way simultaneous audio-visual communication
* make it clear that the rule is not intended to preclude the use of ACT for the preservation of testimony as permitted by Rules 500 and 501
* provide a cross-reference to Rule 103 further explaining that two-way-simultaneous is one form of advanced communication technology as defined in Rule 103
* make it clear that the language in paragraph (A)(6) is not intended to alter the right of a defendant to waive his or her presence at a criminal proceeding
* explain that the paragraph (A)(4) exception for revocation hearings addresses Gagnon II-type hearings, in which there may be a sentencing for a violation of the defendant's probation or parole, and not the Gagnon I-type revocation hearings in which there only is a probable cause finding that a violation has occurred
* cross-reference the rules concerning the ''criminal proceedings'' enumerated as exceptions in paragraph (A)(1)--(5).
[Pa.B. Doc. No. 02-783. Filed for public inspection May 3, 2002, 9:00 a.m.] _______
1 The first published proposals incorporated ACT provisions into the rules that govern, inter alia, the procedures for preliminary arraignments, arraignments, search warrants, and arrest warrants. See 28 Pa.B. 3934 (August 15, 1998), 29 Pa.B. 4426 (August 21, 1999), 29 Pa.B. 4429 (August 21, 1999), 29 Pa.B. 4539 (August 28, 1999).
2 Some of these general communications include comments made during the common pleas automation project, oral communications made to Committee members and Staff, and questions to the Committee from AOPC staff.
3 We received 41 survey responses: 17 judicial districts reported that they are experimenting with ACT; 16 want to begin to use ACT in criminal proceedings; 8 have no plans to use and no need to use ACT. Some judicial districts use ACT for a large number of criminal cases and a panoply of criminal proceedings; other judicial districts are proceeding conservatively, waiting for the Court or the rules to sanction its use before they proceed. In many instances, funding was reported to be a problem, but the anticipation is that the judicial districts will achieve ACT capabilities and use it in the same way as the judicial districts already using ACT.
4 See PA.CONST. art. I, § 9.
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