THE COURTS
[234 PA. CODE CH. 5]
Order Approving the Revision of the Comment to Rule 573; No. 306 Criminal Procedural Rules; Doc. No. 2
[34 Pa.B. 1932] The Criminal Procedural Rules Committee has prepared a Final Report explaining the March 26, 2004 changes to Rule of Criminal Procedure 573 clarifying that 1) ordinarily the attorney for the Commonwealth cannot charge the defendant for the costs of copying discoverable materials, but on a case-by-case basis, the attorney may request the trial judge to order costs charged against the defendant, and 2) the judge has the discretion to determine the amount of costs, if any, to be paid by the defendant. The Final Report follows the Court's Order.
Order Per Curiam:
Now, this 26th day of March, 2004, upon the recommendation of the Criminal Procedural Rules Committee; the proposal having been published before adoption at 32 Pa.B. 6248 (December 21, 2002), and in the Atlantic Reporter (Second Series Advance Sheets, Vol. 811), 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 Rule of Criminal Procedure 573 is approved in the following form.
This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective July 1, 2004.
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
CHAPTER 5. PRETRIAL PROCEDURES IN COURT CASES
PART F. Procedures Following Filing of Information Rule 573. Pretrial Discovery and Inspection.
* * * * *
Comment * * * * * The attorney for the Commonwealth should not charge the defendant for the costs of copying pretrial discovery materials. However, nothing in this rule is intended to preclude the attorney for the Commonwealth, on a case-by-case basis, from requesting an order for the defendant to pay the copying costs. In these cases, the trial judge has discretion to determine the amount of costs, if any, to be paid by the defendant.
Any motion under this rule must comply with the provisions of Rule 575 (Motions and Answers) and Rule 576 (Filing and Service by Parties).
Included within the scope of paragraph (B)(2)(a)(iv) is any information concerning any prosecutor, investigator, or police officer involved in the case who has received either valuable consideration, or an oral or written promise or contract for valuable consideration, for information concerning the case, or for the production of any work describing the case, or for the right to depict the character of the prosecutor or investigator in connection with his or her involvement in the case.
* * * * * Official Note: Present Rule 305 replaces former Rules 310 and 312 in their entirety. Former Rules 310 and 312 adopted June 30, 1964, effective January 1, 1965. Former Rule 312 suspended June 29, 1973, effective immediately. Present Rule 305 adopted June 29, 1977 and November 22, 1977, effective as to cases in which the indictment or information is filed on or after January 1, 1978; Comment revised April 24, 1981, effective June 1, 1981; amended October 22, 1981, effective January 1, 1982; amended September 3, 1993, effective January 1, 1994; amended May 13, 1996, effective July 1, 1996; Comment revised July 28, 1997, effective immediately; Comment revised August 28, 1998, effective January 1, 1999; renumbered Rule 573 and amended March 1, 2000, effective April 1, 2001; amended March 3, 2004, effective July 1, 2004; Comment revised March 26, 2004, effective July 1, 2004.
Committee Explanatory Reports:
* * * * * Final Report explaining the March 26, 2004 Comment revision concerning costs of copying discovery materials published with the Court's Order at 34 Pa.B. 1933 (April 10, 2004).
FINAL REPORT1
Revision of the Comment to Pa.R.Crim.P. 573
Charges for Copying Discovery Material On March 26, 2004, effective July 1, 2004, upon the recommendation of the Criminal Procedural Rules Committee, the Court approved the revision of the Comment to Rule 573 (Pretrial Discovery and Inspection) clarifying that ordinarily the attorney for the Commonwealth cannot charge the defendant for the costs of copying discoverable materials.
The Committee received an inquiry from the Common Pleas Case Management System (CPCMS)2 staff asking if the Criminal Rules should address whether the attorneys for the Commonwealth may charge a fee to the defendant for the copying costs associated with discovery materials. They pointed out that 1) this practice occurs in several judicial districts, 2) they could find nothing in the Criminal Rules specifically permitting this practice, and 3) there is no uniformity among the judicial districts in procedures concerning whether and how these copying costs are assessed. The Committee agreed that addressing this issue in the Criminal Rules would promote the Court's goals of statewide uniformity.
How to address ''costs for discovery'' in the Criminal Rules provisions generated considerable discussion among the Committee members. Initially, there was a split in opinion about whether the attorneys for the Commonwealth should be permitted to charge the defendants for the costs associated with the copying of discoverable materials.3 Some members felt strongly that defendants should not be required to pay the costs of copying any discovery materials, especially mandatory discovery; other members thought the attorneys for the Commonwealth should not carry the burden of paying these costs in all cases. Ultimately, the members reached a compromise, agreeing that generally the attorney for the Commonwealth may not charge a defendant for the costs of copying discovery materials, but a judge may order the defendant to pay the costs in a specific case. Accordingly, the Rule 573 Comment has been revised to explain that 1) the attorney for the Commonwealth cannot assess a fee against the defendant for the costs of copying discovery materials, but on a case-by-case basis, the attorney may request the trial judge to order costs charged against the defendant, and 2) the judge has the discretion to determine the amount of costs, if any, to be paid by the defendant.
[Pa.B. Doc. No. 04-593. Filed for public inspection April 9, 2004, 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 The Supreme Court has been developing the CPCMS, a statewide automated case management system for the criminal divisions of the courts of common pleas, and the Court anticipates the new system will be functioning fully within the next year and will promote the Court's goal of statewide uniformity. As part of the development of the CPCMS, the Committee has been working with the system staff to ensure conformity and consistency with the Criminal Rules.
3 In developing this rule change, the Committee reviewed Chapter 5 Part F of the rules, and specifically Rule 573(B)(1) and (B)(2)(a) that provide for ''the defendant's attorney to inspect and copy or photograph'' discoverable information. The Committee researched the history of Rule 573, but found nothing concerning the provisions for copying and who should be responsible for paying the costs of copying discovery material that was helpful to this inquiry. We also looked at other jurisdictions and found few rules, statutes, or cases specifically permitting the practice of assessing copying costs for discovery against defendants. See, e.g., U. S. v. Freedman, 688 F.2d 1364 (C.A. 11 1982) and U. S. v. Green, 144 F.R.D. 631 (1992). See also State v. Williams, 678 So.2d 1356 (Fl. 1996), in which the court held, inter alia, the defendant has the burden of paying the costs of copying discoverable materials.
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