THE COURTS

Title 234--RULES OF CRIMINAL PROCEDURE

[234 PA. CODE CH. 8]

Order Amending Rule 801; No. 356 Criminal Procedural Rules; Doc. No. 2

[37 Pa.B. 1960]
[Saturday, April 28, 2007]

Order

Per Curiam:

   Now, this 13th day of April, 2007, 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) in the interests of justice, 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 801 is amended in the following form.

   This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective immediately.

   Mr. Justice Fitzgerald did not participate in the consideration or decision of this matter.

Annex A

TITLE 234. RULES OF CRIMINAL PROCEDURE

CHAPTER 8. SPECIAL RULES FOR CASES IN WHICH DEATH SENTENCE IS AUTHORIZED

Rule 801. Qualifications for Defense Counsel in Capital Cases.

   In all cases in which the district attorney has filed a Notice of Aggravating Circumstances pursuant to Rule 802, before an attorney may participate in the case either as retained or appointed counsel, the attorney must meet the educational and experiential criteria set forth in this rule.

   (1)  EXPERIENCE: Counsel shall

   (a)  be a member in good standing of the Bar of this Commonwealth;

   (b)  be an active trial practitioner with a minimum of 5 years['] criminal litigation experience; and

   (c)  have served as lead or co-counsel in a minimum of 8 significant cases [which were tried to verdict before a jury] that were given to the jury for deliberations. If representation is to be only in an appellate court, prior appellate or post-conviction representation in a minimum of 8 significant cases shall satisfy this requirement. A ''significant case'' for purposes of this rule [shall be a] is one that charges murder, [including] manslaughter [and], vehicular homicide, or a felony [of the first or second degree] for which the maximum penalty is 10 or more years.

   (2)  EDUCATION:

   (a)  During the 3-year period immediately preceding the appointment or entry of appearance, counsel shall have completed a minimum of 18 hours of training relevant to representation in capital cases, as approved by the Pennsylvania Continuing Legal Education Board.

   (b)  Training in capital cases shall include, but not be limited to, training in the following areas:

   (i)  relevant state, federal, and international law;

   (ii)  pleading and motion practice;

   (iii)  pretrial investigation, preparation, strategy, and theory regarding guilt and penalty phases;

   (iv)  jury selection;

   (v)  trial preparation and presentation;

   (vi)  presentation and rebuttal of relevant scientific, forensic, biological, and mental health evidence and experts;

   (vii)  ethical considerations particular to capital defense representation;

   (viii)  preservation of the record and issues for post-conviction review;

   (ix)  post-conviction litigation in state and federal courts;

   (x)  unique issues relating to those charged with capital offenses when under the age of 18[.];

   (xi)  [Counsel's] counsel's relationship with the client and family[;].

   (c)  The Pennsylvania Continuing Legal Education Board shall maintain and make available a list of attorneys who satisfy the educational requirements set forth in this rule.

Comment

   The purpose of this rule is to provide minimum uniform statewide standards for the experience and education of appointed and retained counsel in capital cases, to thus ensure such counsel possess the ability, knowledge, and experience to provide representation in the most competent and professional manner possible. These requirements apply to counsel at all stages of a capital case, including pretrial, trial, post-conviction, and appellate.

   The educational and experience requirements of the rule may not be waived by the trial or appellate court. A court may allow representation by an out-of-state attorney pro hac vice, if satisfied the attorney has equivalent experience and educational qualifications, and is a member in good standing of the Bar of the attorney's home jurisdiction.

   An attorney may serve as ''second chair'' in a capital case without meeting the educational or experience requirements of this rule. ''Second chair'' attorneys may not have primary responsibility for the presentation of significant evidence or argument, but may present minor or perfunctory evidence or argument, if deemed appropriate in the discretion of the court. Service as a ''second chair'' in a homicide case will count as a trial for purposes of evaluating that attorney's experience under paragraph [(A)](1)(c) of this rule.

   Paragraph (1)(c) was amended in 2007 to clarify that (1) cases that are tried to a verdict or that end with a mistrial after the case is given to the jury for deliberations satisfy the requirements of the rule, and (2) all cases charging felonies for which the term of imprisonment is 10 or more years will count as ''significant cases,'' see, e.g., Crimes Code, 18 Pa.C.S. §  106(b), and 35 P. S. § 780-113(f)(1).

   The CLE Board may approve entire courses focusing on capital litigation, or individual portions of other courses dealing with general areas relevant to capital cases (such as trial advocacy). It is expected that counsel will attend training programs encompassing the full range of issues confronting the capital litigator from the investigative and pretrial stages through appellate and post-conviction litigation in the state and federal courts.

   Determination of experience will be accomplished by the appointing or admitting court, by colloquy or otherwise.

   For the entry of appearance and withdrawal of counsel requirements generally, see Rule 120.

   For the appointment of trial counsel, see Rule 122.

   For the entry of appearance and appointment of counsel in post-conviction collateral proceedings, see Rule 904.

   Official Note: Adopted June 4, 2004, effective November 1, 20041; amended April 13, 2007, effective immediately.

   Committee Explanatory Reports:

   Final Report explaining the April 13, 2007 changes to paragraph (1)(c) published with the Court's Order at 37 Pa.B. 1961 (April 28, 2007).

FINAL REPORT¹

Proposed Amendments to Pa.R.Crim.P. 801

Qualifications for Defense Counsel in Capital Cases

   On April 13, 2007, effective immediately, upon the recommendation of the Criminal Procedural Rules Committee, the Court amended Rule 801 to clarify that cases charging ungraded felonies for which the penalty is ten years or more fall within the definition of a ''significant case,'' and cases that end in a mistrial after being submitted to the jury count toward the eight significant cases required by the rule.

I.  INTRODUCTION

   Since June 4, 2004 when the Court adopted Rule 801 (Qualifications For Defense Counsel In Capital Cases) establishing the minimum educational and experiential requirements that attorneys must satisfy to represent defendants who are subject to the death penalty, the Committee has received numerous questions about the scope and application of the rule. Two issues that were raised by several different individuals concerned the provisions in paragraph (1)(c) of Rule 801: (1) whether ungraded felonies would count in calculating the 8 significant cases for purposes of meeting the experiential requirement; (2) whether the situation in which an attorney has represented a defendant charged with ''Rule 801 qualifying'' felonies through the complete trial of the case only to have the jury be deadlocked on a verdict and a mistrial being declared would count toward the 8 significant cases. After considering these issues and the purpose for Rule 801, the Committee reasoned that this purpose would be served both (1) if ungraded felonies with the same sentence as the felonies of the first or second degree are classified as ''significant cases'' and (2) if cases in which the matter was submitted to the jury for deliberations end in a mistrial are counted toward the 8 significant cases requirement.

Discussion

   Rule 801(1)(c) defines a ''significant case'' as a murder, including manslaughter and vehicular homicide, or a felony of the first or second degree. It is the specification of ''a felony of the first or second degree'' that generated many of the inquiries the Committee has received.² Because some offenses that are designated felonies without a grade carry a punishment the same as an offense of the first or second degree,³ it makes sense these ''ungraded'' felonies also should be considered ''significant cases'' under Rule 801. Noting that the sentence for a felony of the second degree is ''not more than ten years,'' the Committee concluded that to be counted as a significant case, an ungraded felony must have a maximum penalty of 10 or more years. Accordingly, the last sentence of Rule 801(1)(c) has been amended to be applicable to all felonies ''for which the maximum penalty is 10 or more years.'' In addition, the phrase ''murder, including manslaughter and vehicular homicide'' has been amended to read ''murder, manslaughter, vehicular homicide'' because manslaughter and vehicular homicide are crimes distinct from murder.

   Rule 801(1)(c) also requires that counsel must have served as lead or co-counsel in cases ''which were tried to verdict before a jury.'' Several of the inquiries the Committee has received about Rule 801 questioned whether cases that are tried and submitted to the jury but end in a mistrial would count toward the 8 significant cases, pointing out in these cases the attorney has done everything he or she must do toward trying the case to verdict, there just was not a verdict. The Committee agreed this interpretation is a logical extension of the requirement that the attorney try a case to verdict before a jury. To make this clear, the first sentence of Rule 801(1)(c) has been amended by deleting the phrase ''which were tried to verdict before a jury'' and replacing this with ''that were given to the jury for deliberations.''

   Finally, the Committee added an explanatory paragraph to the Rule 801 Comment that elaborates on the new rule provisions and includes cross-references to the Crimes Code and the Controlled Substance, Drug, Device and Cosmetic Act concerning graded and ungraded felonies.

[Pa.B. Doc. No. 07-734. Filed for public inspection April 27, 2007, 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 Crimes Code, 18 Pa.C.S. § 1103, provides that the sentence of imprisonment for felony of the first degree ''shall be fixed by the court at not more than 20 years,'' and the sentence for a felony of the second degree ''shall be fixed by the court at not more than ten years.''

³  For example, Title 35, section 780-113(f)(1), designates certain offenses of the Controlled Substance, Drug, Device and Cosmetic Act as felonies with a sentence not to exceed 15 years.

---

No part of the information on this site may be reproduced for profit or sold for profit.

This material has been drawn directly from the official Pennsylvania Bulletin full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.

---