Pennsylvania Bulletin

PA Bulletin, Doc. No. 03-344

THE COURTS

[234 PA.  CODE CH. 6]

Request for Instructions, Charge to the Jury and Preliminary Instructions

[33 Pa.B. 1049]

   The Criminal Procedural Rules Committee is planning to recommend that the Supreme Court of Pennsylvania amend Pa.R.Crim.P. 647 (Request for Instructions, Charge to the Jury, and Preliminary Instructions). The proposed changes provide that a judge's charge to the jury may be given before or after closing arguments, or at both times. 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 Report 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 explanatory Reports.

   The text of the proposed rule changes precedes the Report. Additions are shown in bold; deletions are in bold and brackets.

   We request that interested persons submit suggestions, comments, or objections concerning this proposal in writing to the Committee through counsel,

Anne T. Panfil, Chief Staff Counsel
Supreme Court of Pennsylvania
Criminal Procedural Rules Committee
5035 Ritter Road, Suite 800
Mechanicsburg, PA 17055
fax: (717) 795-2106
e-mail: criminal.rules@supreme.court.state.pa.us

   no later than Friday, March 28, 2003.

By the Criminal Procedural Rules Committee

JOHN J. DRISCOLL,
Chair

Annex A

TITLE 234.  RULES OF CRIMINAL PROCEDURE

CHAPTER 6.  TRIAL PROCEDURES IN COURT CASES

PART C(2).  Conduct of Jury Trial

Rule 647.  Request for Instructions, Charge to the Jury, and Preliminary Instructions

   (A)  Any party may submit to the trial judge written requests for instructions to the jury. Such requests shall be submitted within a reasonable time before the closing arguments, and at the same time copies thereof shall be furnished to the other parties. Before closing arguments, the trial judge shall inform the parties on the record of the judge's rulings on all written requests. The trial judge shall charge the jury, and the charge may be given before or after the arguments are completed, or at both times.

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Comment

   Paragraph (A) [, amended in 1985,] parallels the procedures in many other jurisdictions which require that the trial judge rule on the parties' written requests for instructions before closing arguments, that the rulings are on the record, and that the judge charge the jury before or after the closing arguments, or at both times. See, e.g., Fed.R.Crim.P. 30; ABA Standards on Trial by Jury, Standard 15-3.6(a); Uniform Rule of Criminal Procedure 523(b).

   Under paragraph (A), the preferred procedure is that the trial judge charge the jury before the closing arguments. This enables the attorneys during the closing arguments to relate the facts of the case and the evidence presented during the trial to the law as explained by the judge in the charge to the jury, and aids the jury in their comprehension.

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   Official Note:  Rule 1119 adopted January 24, 1968, effective August 1, 1968; amended April 23, 1985, effective July 1, 1985; renumbered Rule 647 and amended March 1, 2000, effective April 1, 2001; amended _____ , 2003, effective _____ 2003.

Committee Explanatory Reports:

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   Report explaining the proposed amendment concerning the time for charging the jury published at 33 Pa.B. 1050 (March 1, 2003).

REPORT

Proposed Amendment to Pa.R.Crim.P. 647

Judge's Charge to the Jury

   The Committee received correspondence raising the issue concerning whether the Criminal Rules should provide that the judge charge the jury before closing arguments similar to the procedure in civil cases.¹ The correspondence suggested that: 1) when the judge charges the jury prior to the closing arguments, the attorneys know exactly how the judge defines the law and can incorporate the judge's language into their closings; 2) the attorneys also are comfortable when the law has been defined for the jury and can omit repeating the definitions in favor of arguing the facts or the particular applicability of the law to the facts; and 3) although the Criminal Rules do not permit the judge to charge the jury before the closing arguments, this procedure has been employed successfully by judges in civil cases in Pennsylvania, and in other jurisdictions.² The Committee agreed the points raised in the correspondence merited consideration, and that addressing it in the Criminal Rules would be helpful to the lawyers in formulating their arguments and the jurors in their understanding of the law applicable to the case they will decide.

   During the Committee's consideration of this change, we reviewed the rules in other jurisdictions. We found that several jurisdictions have adopted rules modeled on Federal Rule 30 (Instructions), which was amended in 1987 to permit the court to instruct the jury before or after the closing argument of counsel, or at both times.³ The Advisory Committee Notes following the federal rule explain that the purpose of the 1987 amendment permitting the closing before or after the closing arguments or at both times was ''to give the court discretion to instruct the jury before or after closing arguments, or at both times.'' The Notes also explain that the change permits courts 1) to continue instructing the jury after closing arguments, 2) to instruct before arguments in order to give the parties an opportunity to argue to the jury in light of the exact language used by the court, and 3) to instruct the jury both before and after the arguments, which assures that the court retains power to remedy omissions in pre-argument instructions or to add instructions necessitated by the arguments.

   The members agreed with these Advisory Committee Notes. We also concluded that when jury instructions are given before the closing arguments, the jurors are ''fresh,'' in a better position to listen to the judge's charge, and more equipped to understand the argument of counsel. The members also noted that when counsel is able to apply the evidence in the case to the judge's specific language, the closing arguments are more effective. Finally, the Committee feels strongly that the court should have discretion when to charge the jury, but that the rule should emphasize that for all the beneficial reasons enumerated the preferred procedure is for the charge to be given before the arguments.

   In view of these considerations, the Committee agreed to amend Rule 647(A) to provide ''The trial judge shall charge the jury, and the charge may be given before or after the arguments are completed, or at both times.'' The Committee also is proposing the Comment include an explanation that the judge's charge to the jury before the closing arguments is ''the superior and preferred practice'' because this enables the attorneys during the closing arguments to relate the facts of the case and the evidence presented during the trial to the law as explained by the judge in the charge to the jury, and aids the jury in their comprehension.

   ¹Pa.R.Civ.P. 233.1(c)(2) (Conduct of Trial. Trial by Jury) provides that the court may''charge the jury at any time during trial.''

   ²See, e.g., Fed.R.Crim.P. 30 (Instructions).

   ³Prior to the 1987 change, Federal Rule 30 required that the court instruct the jury after the arguments of counsel.

[Pa.B. Doc. No. 03-344. Filed for public inspection February 28, 2003, 9:00 a.m.]

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