THE COURTS
Title 234—RULES OF CRIMINAL PROCEDURE
[ 234 PA. CODE CH. 6 ]
Proposed Amendments to Pa.R.Crim.P. 631
[41 Pa.B. 2318]
[Saturday, May 7, 2011]The Criminal Procedural Rules Committee is planning to recommend that the Supreme Court of Pennsylvania amend Rule 631 to provide for the Commonwealth's participation in the waiver of the individual method of voir dire and to revise the Comment to Rule 631 to cross reference recent cases addressing waiver of the judge's presence during voir dire and challenges to accepted jurors. 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 that the Supreme Court does not adopt the Committee's Comments or the contents of the explanatory Reports.
The text of the proposed amendments to the rule 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, Counsel
Supreme Court of Pennsylvania
Criminal Procedural Rules Committee
601 Commonwealth Avenue, Suite 6200
Harrisburg, PA 17106-2635
fax: (717) 231-9521
e-mail: criminalrules@pacourts.usno later than Friday, June 3, 2011.
By the Criminal Procedural Rules Committee
RISA VETRI FERMAN,
Chair
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
CHAPTER 6. TRIAL PROCEDURES IN COURT CASES
PART C(1). Impaneling Jury Rule 631. Examination and Challenges of Trial Jurors.
* * * * * (E) In capital cases, the individual voir dire method must be used, unless the defendant [waives] and the attorney for the Commonwealth with the approval of the judge, after a colloquy on the record demonstrating that this is a knowing and intelligent waiver, waive that alternative. In non-capital cases, the trial judge shall select one of the following alternative methods of voir dire, which shall apply to the selection of both jurors and alternates:
* * * * *
Comment This rule applies to all cases, regardless of potential sentence. Formerly there were separate rules for capital and non-capital cases.
Paragraph (A) provides for the waiver of the judge's presence during voir dire if the parties agree and the judge permits it. This waiver may be performed in writing and no on-the-record colloquy is required. See Commonwealth v. Fitzgerald, 979 A.2d 908 (Pa. Super 2009).
If Alternative (E)(1) is used, examination continues until all peremptory challenges are exhausted or until 12 jurors and 2 alternates are accepted. Challenges must be exercised immediately after the prospective juror is questioned. In capital cases, only Alternative (E)(1) may be used unless affirmatively waived by all defendants and the Commonwealth, with the approval of the trial judge.
Regarding challenges raised due to after discovered information against jurors who had been previously accepted pursuant to paragraph (E)(1)(b), see Commonwealth v. Reed, 605 Pa. 431, 990 A.2d 1158 (2010).
* * * * * Official Note: Adopted January 24, 1968, effective August 1, 1968; amended May 1, 1970, effective May 4, 1970; amended June 30, 1975, effective September 28, 1975. The 1975 amendment combined former Rules 1106 and 1107. Comment revised January 28, 1983, effective July 1, 1983; amended September 15, 1993, effective January 1, 1994. The September 15, 1993 amendments suspended December 17, 1993 until further Order of the Court; amended February 27, 1995, effective July 1, 1995; the September 15, 1993 Order amending Rule 1106 is superseded by the September 18, 1998 Order, and Rule 1106 is amended September 18, 1998, effective July 1, 1999; renumbered Rule 631 and amended March 1, 2000, effective April 1, 2001; amended , 2011, effective , 2011.
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).
Report explaining the proposed amendments regarding waiver of the judge's presence during voir dire, challenges to jurors, and the Commonwealth's role in the waiver of individual voir dire published at 41 Pa.B. 2318 (May 7, 2011).
REPORT
Proposed Amendments to Pa.R.Crim.P.631
Voir Dire IssuesAs part of its duties of monitoring developments in the law that effect criminal practice, the Committee examined two recent cases, Commonwealth v. Fitzgerald, 979 A.2d 908 (Pa. Super. 2009), appeal denied, __ Pa. __ , 990 A.2d 727 (2010) and Commonwealth v. Reed, 605 Pa. 431, 990 A.2d 1158 (2010), that addressed aspects of Rule 631 (Examination and Challenges of Trial Jurors) and determined that cross-references to these cases in the Comment to Rule 631 would be beneficial. Additionally, the Committee examined the provisions in Rule 631(E) regarding the waiver of the individual voir dire method in capital cases in light of the Commonwealth's right to trial by jury under the Pennsylvania Constitution.
Waiver of Judge's Presence during Voir Dire
The first issue considered by the Committee concerned clarifying that a written waiver of the presence of the judge and court reporter during voir dire is sufficient and that no on-the-record waiver colloquy is required. Rule 631(A) specifically permits the parties to waive the judge's presence during voir dire. Questions have arisen from time to time as to whether, when the parties waive the presence of the judge and the court reporter during voir dire, it is necessary that an on-the-record colloquy be conducted as opposed to having a written waiver executed. Unlike waivers that involve fundamental constitutional rights, such as the waiver of a jury trial or the entry of a guilty or nolo contendere plea, the waiver of the presence of the judge and the court reporter during voir dire is a waiver that does not require a searching on-the-record colloquy.
This issue has been addressed by the Superior Court in Commonwealth v. Fitzgerald, 979 A.2d 908 (Pa. Super. 2009), appeal denied, __ Pa. __ , 990 A.2d 727 (2010). In this case, the Superior Court held that defense counsel was not ineffective for failing to demand an on-the-record colloquy as to the defendant's waiver of the judge's presence during voir dire. The Superior Court rejected the defendant's argument that waiver of the judge's presence rose to the same level, that of a ''fundamental personal right, as a waiver of jury trial or counsel.'' The Court noted that Rule 631 permitted such a waiver but did not specify whether the waiver must be in writing, on the record, or ''knowing, voluntary, and intelligent'' as is the case for the Rule 620 waiver of jury trial. The defendant provided no authority to indicate that the waiver of the judge's presence rose to a level requiring constitutional protection.
The proposed revisions to the Comment to Rule 631 make it clear that a written waiver of the presence of the judge and the court reporter during voir dire will suffice, in accordance with the holding in the Fitzgerald case.
Challenges to Accepted Jurors
The second part of the proposal adds a cross-reference to the Rule 631 Comment to the Pennsylvania Supreme Court's decision in Commonwealth v. Reed, 605 Pa. 431, 990 A.2d 1158 (2010). In this case, the defendant challenged on appeal the removal of a potential juror by peremptory challenge after he had been accepted. The claim was based on the language of Rule 631(E)(1)(b) that states, ''Once accepted by all parties, a prospective juror shall not be removed by peremptory challenge. Without declaring a mistrial, a judge may allow a challenge for cause at any time before the jury begins to deliberate, provided sufficient alternates have been selected, or the defendant consents to be tried by a jury of fewer than 12, pursuant to Rule 641.''
The prospective juror, after having been accepted by both parties, informed the trial judge that, although he stayed occasionally in Pennsylvania, he was really a resident of Ohio. The trial judge permitted the Commonwealth to use a peremptory challenge to remove the prospective juror. Defendant argued that the Commonwealth should have been required to challenge the juror for cause.
In rejecting the defendant's argument, the Court referred to Commonwealth v. Chmiel, 585 Pa. 547, 889 A.2d 501 (2005), in which the Court held that the Rule 631(E)(1)(b) provision regarding no challenges ''must be read in context of other requirements in the rule that peremptory challenges are to be used only after the prospective juror is examined'' and that the allowance of peremptory challenges remained within the trial court's discretionary prerogative, even after the parties' initial acceptance of a juror, where additional information subsequently came to light.
The Court also rejected the defendant's challenge, including a request for the remedy of additional peremptory challenges, to the trial court's entertainment of a challenge for cause of an accepted juror who later informed the judge that he would not be able to ever render a death verdict. The Court noted that the defendant admitted that challenges for cause may be exercised before the jury begins to deliberate, as provided for in Rule 631(E)(1)(b) and that, under Rule 634(A)(3) and Commonwealth v. Edwards, 493 Pa. 281, 426 A.2d 550 (1981), the trial judge in a capital murder case lacks the discretion to expand the number of peremptory challenges.
The Committee believes that a cross-reference to the holding in Reed would be beneficial to the bench and bar, and is proposing the Comment to Rule 631 be revised accordingly.
Commonwealth's Participation in the Waiver of the Individual Voir Dire Method
Rule 631(E) states that ''[i]n capital cases, the individual voir dire method must be used, unless the defendant waives that alternative.'' The question was raised as to whether the Commonwealth should have an equal say in whether the individual voir dire method is used in capital cases in light of the 1998 amendment of the Pennsylvania Constitution that afforded the Commonwealth ''the same right to trial by jury as does the accused.'' Pa. Const. Art I, § 6 (amended 1998).
The Committee examined the history of Rule 631 (formerly Rule 1106) and determined that the language regarding the waiver of method had been included in the rule prior to the 1998 Constitutional amendments and concluded that failure to modify the waiver provision had been an oversight.
The Committee is therefore proposing an amendment to Rule 631(E) to give the Commonwealth the right to participate in the process of a waiver of the individual voir dire method in a manner similar to that used in Rule 620 for the waiver of jury trials. This includes the requirement that the waiver colloquy be conducted on the record and that the waiver is subject to the judge's approval.
[Pa.B. Doc. No. 11-758. Filed for public inspection May 6, 2011, 9:00 a.m.]
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