THE COURTS
[234 PA. CODE CH. 2]
Order Amending Rule 227; No. 328 Criminal Procedural Rules; Doc. No. 2
[35 Pa.B. 5678] The Criminal Procedural Rules Committee has prepared a Final Report explaining the September 30, 2005 changes to Rule of Criminal Procedure 227. The changes, which will be effective February 1, 2006, clarify that (1) when it is necessary to give constitutional warnings to a witness who will testify in an investigating grand jury proceeding, the warnings and the oath must be administered by the supervising judge, and (2) for all other witnesses in the investigating grand jury proceeding, a court representative, who is authorized to administer oaths, is permitted to administer the oath. The Final Report follows the Court's Order.
Order Per Curiam:
Now, this 30th day of September, 2005, upon the recommendation of the Criminal Procedural Rules Committee; the proposal having been published before adoption at 33 Pa.B. 2163 (May 3, 2003), 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 227 is amended in the following form.
This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective February 1, 2006.
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
CHAPTER 2. INVESTIGATIONS
PART B(1). Investigating Grand Juries Rule 227. Administering Oath to Witness.
Each witness to be heard by the investigating grand jury shall be sworn [by the court] before testifying. The witness may elect to be sworn in camera or in open court.
Comment * * * * * When it is necessary to give constitutional warnings to a witness, the warnings and the oath must be administered by the court. As to warnings that the court may have to give to the witness when the witness is sworn, see, e.g., Commonwealth v. McCloskey, 443 Pa. 117, 277 A.2d 764 (Pa. 1971).
Official Note: Rule 259 adopted June 26, 1978, effective January 9, 1979; renumbered Rule 227 and Comment revised March 1, 2000, effective April 1, 2001; amended September 30, 2005, effective February 1, 2006.
Committee Explanatory Reports:
Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court's Order at 30 Pa.B. [1477] 1478 (March 18, 2000).
Final Report explaining the September 30, 2005 amendments concerning administration of the oath published with the Court's Order at 35 Pa.B. 5679 (October 15, 2005).
FINAL REPORT1
Amendments to Pa.R.Crim.P. 227
Administration of the Oath to Investigating Grand Jury Witnesses On September 30, 2005, effective February 1, 2006, upon the recommendation of the Criminal Procedural Rules Committee, the Court amended Rule 227 (Administering Oath to Witness) to make the rule clear that (1) when it is necessary to give constitutional warnings to a witness who will testify in an investigating grand jury proceeding, the warnings and the oath must be administered by the supervising judge, and (2) for all other witnesses in the investigating grand jury proceeding, a court representative, who is authorized to administer oaths, is permitted to administer the oath.
When the Committee originally proposed Rule 227 in 1978, the impetus for the requirement that the court administer the oath to witnesses was concerns about the warnings and instructions that should be given to a witness prior to testifying. The decision to add to Rule 227 the requirement that the oath be administered by the court relied on Commonwealth v. McCloskey, 443 Pa. 117, 277 A.2d 764 (Pa. 1971), in which the Supreme Court stated, inter alia, that ''the proper procedure is for the court supervising the investigating grand jury to instruct the witness when administering the oath'' about the right to counsel.
In view of this history, the Committee concluded the ''sworn by the court'' requirement only applies to witnesses who also must be given warnings at the time the oath is administered. The Committee also noted the witnesses who do not require constitutional warnings in most cases are law enforcement officers or other individuals involved in the investigation, and to require them to appear before the supervising judge to be sworn, which is frequently hours before the witness is to testify, is inefficient, an inconvenience to the law enforcement officers, an economic and staffing burden on their departments, and serves no purpose.
Accordingly, in view of these considerations and the rule history, Rule 227 has been amended by deleting the phrase ''by the court'' to allow any court official who is authorized to administer oaths to administer the oath to the investigating grand jury witnesses who do not require constitutional warnings. This change promotes judicial economy and benefits these other witnesses who would be able to appear at the time scheduled for their testimony rather than at the time the supervising judge is available for the administration of oaths. In addition, a cautionary provision is added to the second paragraph of the Comment that explains when it is necessary to give constitutional warnings to a witness, the warnings and oath must be administered by the court.
[Pa.B. Doc. No. 05-1895. Filed for public inspection October 14, 2005, 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.
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