THE COURTS

Title 234—RULES OF CRIMINAL PROCEDURE

[ 234 PA. CODE CHS. 1 AND 5 ]

Proposed Amendments to Pa.Rs.Crim.P. 119 and 500

[41 Pa.B. 3810]
[Saturday, July 16, 2011]

 The Criminal Procedural Rules Committee is planning to recommend that the Supreme Court of Pennsylvania amend Rule 119 to clarify that two-way audio-visual communications in certain court proceedings may be used absent the defendant's consent if otherwise permitted by law and to revise the Comment to Rule 500 to state that nothing in that rule prevents the taking or preservation of testimony outside the presence of the defendant, if authorized by law. 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.us

no later than Friday, September 2, 2011.

By the Criminal Procedural Rules Committee:

RISA VETRI FERMAN, 
Chair

Annex A

TITLE 234. RULES OF CRIMINAL PROCEDURE

CHAPTER 1. SCOPE OF RULES, CONSTRUCTION AND DEFINITIONS, LOCAL RULES

PART A. Business of the Courts

Rule 119. Use of Two-Way Simultaneous Audio-Visual Communication in Criminal Proceedings.

*  *  *  *  *

 (B) If otherwise authorized by law, two-way simultaneous audio-visual communications may be used in a proceeding specified in (A)(1) through (A)(6).

 (C) The defendant may consent to any proceeding being conducted using two-way simultaneous audio-visual communication.

 [(C)] (D) When counsel for the defendant is present, the defendant must be permitted to communicate fully and confidentially with defense counsel immediately prior to and during the proceeding.

Comment

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 Notwithstanding the preclusion of the use of two-way simultaneous audio-visual communications in the proceedings listed in paragraph (A)(1) through (A)(6), there may be occasions when such communications may be used, absent the defendant's consent, when otherwise authorized by law. See, e.g., 42 Pa.C.S. § 5985. See also Commonwealth v. Atkinson, 987 A.2d 743 (Pa.Super. 2009).

 Within the meaning of this rule, counsel is present when physically with the defendant or with the judicial officer conducting the criminal proceeding.

*  *  *  *  *

 Official Note: New Rule 118 adopted August 7, 2003, effective September 1, 2003; renumbered Rule 119 and Comment revised June 30, 2005, effective August 1, 2006; amended January 27, 2006, effective August 1, 2006; Comment revised May 4, 2009, effective August 1, 2009; amended    2011, effective,    , 2011.

Committee Explanatory Reports:

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 Final Report explaining the May 4, 2009 revision to the Comment adding PCRA hearings as a proceeding to which the defendant may consent to be held using ACT published with the Court's Order at 39 Pa.B. [2434] 2435 (May 16, 2009).

 Report explaining the proposed amendments concerning witness testimony and allowance by law of using ACT published at 41 Pa.B. 3811 (July 16, 2011).

CHAPTER 5. PRETRIAL PROCEDURES IN COURT CASES

PART A. Preservation of Testimony

Rule 500. Preservation of Testimony After Institution of Criminal Proceedings.

 (A) BY COURT ORDER.

 (1) At any time after the institution of a criminal [proceedings] proceeding, upon motion of any party, and after notice and hearing, the court may order the taking and preserving of the testimony of any witness who may be unavailable for trial or for any other proceeding, or when due to exceptional circumstances, it is in the interests of justice that the witness' testimony be preserved.

*  *  *  *  *

Comment

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 This rule does not address the admissibility of the preserved testimony. All questions of admissibility must be decided by the court. See, e.g., Judicial Code § 5917, 42 Pa.C.S. § 5917 (1982); Commonwealth v. Scarborough, 491 Pa. 300, 421 A.2d 147 ([Pa.] 1980); Commonwealth v. Stasko, 471 Pa. 373, 370 A.2d 350 ([Pa.] 1977).

*  *  *  *  *

 Nothing is this rule is intended to preclude the defendant from waiving his or her presence during the taking of testimony.

 Nothing in this rule is intended to prevent the taking or preservation of testimony outside the presence of the defendant, if authorized by law. See 42 Pa.C.S. § 5984.1

*  *  *  *  *

 Official Note: Rule 9015 adopted November 8, 1982, effective January 1, 1983; amended March 22, 1989, effective July 1, 1989; renumbered Rule 500 and amended March 1, 2000, effective April 1, 2001; Comment revised    , 2011, effective    , 2011.

Committee Explanatory Reports:

*  *  *  *  *

 Report explaining the proposed Comment revision concerning witness testimony outside the presence of the defendant published at 41 Pa.B. 3811 (July 16, 2011).

REPORT

Proposed Amendments to Pa.R.Crim.P. 119 and Revision of the Comment to Pa.R.Crim.P. 500

Testimony Using Advanced Communications Technology when Authorized by Law

 Rule 119 authorizes the use of two-way simultaneous audio-visual communications in many criminal proceedings. However, paragraph (A) of the rule lists six categories of proceedings in which such technology is not permitted. Paragraph (B) permits a defendant to consent to using this technology in any proceeding. It was suggested to the Committee that the use of this technology may be permitted even in these six types of proceedings if there is a strong public policy reason, usually codified by statute, to permit its use, and concluded that a narrow reading of Rule 119 might suggest that the use of such method of testimony would be precluded under the rules unless the defendant consented.

 This is concept was recognized by the Superior Court in Commonwealth v. Atkinson, 987 A.2d 743 (Pa.Super. 2009). Atkinson was a drug trafficking case in which a witness, a co-conspirator who was incarcerated, was permitted to testify at a suppression hearing via a video link to the prison in which he was being held. This was done solely due to transportation difficulties. The Superior Court found that permitting the presentation of this testimony in this manner violated the defendant's confrontation rights without being superseded by a ''compelling state interest'' that would warrant it.¹

 The Committee considered what would be an example of a ''compelling state interest.'' The members noted that 42 Pa.C.S. § 5985 provides that the court may permit the testimony of a child victim or material witness to be taken using the ''contemporaneous alternative method.'' Under this method, a child victim may be permitted to testify before a limited number of people who are actually physically present during the child's testimony. In particular, the defendant would not be present but must be able to hear and observe the testimony, presumably by audio-visual communication technology. In order to utilize this method of testimony, it must be demonstrated that the child-witness would suffer real harm if compelled to testify in the presence of the defendant; in other words, there is a compelling state interest warranting the use of audio-visual communications technology in these cases.

 The Committee also examined the history of Rule 119, which was first adopted in 2003. In developing this rule, the Committee at the time focused on the use of the audio-visual communications to permit a defendant who was likely confined to participate in proceedings without the expense and transportation difficulties. The impetus for the Committee's examination of the practice was proposed legislation that provided for a defendant's appearance for proceedings to be handled electronically. Additionally, the Committee was receiving reports of a number of courts across the state that were conducting proceedings in this manner but in a piecemeal fashion. Therefore, the rule was developed to provide for more uniform procedures and prevent legislation that would have unconstitutionally impinged on Court's rulemaking authority.

 While the main focus of discussion was upon the defendant's right to be present, the Committee did consider the issues related to testimony of witnesses, including the recording of witness' testimony electronically. The Committee concluded that these types of procedures were addressed adequately in Rules 500 and 501. During this discussion, the Committee also acknowledged the use of audio-visual communications to actually present testimony rather than just record it. The Committee at that time concluded that the consent of the parties would be necessary to handle testimony taken in this fashion due to the impact this procedure might have on a defendant's confrontation rights.

 The Final Report issued when Rule 119 was adopted contains the Committee's view that, ''when the criminal proceeding is one that requires rigid protection of the defendant's rights and the integrity and fairness of the judicial process, any rule addressing this type of procedure must be one capable of providing two-way simultaneous audio-visual communication, and allow for confidential communications between the defendant and defendant's counsel.''² The parameters for utilizing the ''contemporaneous alternative method'' in 42 Pa.C.S. § 5985, in addition to meeting the ''compelling state interest'' standard, are consistent with these requirements. The Committee concluded that acknowledgement of the existence of this or similar procedures would be compatible with the Committee's original intentions for Rule 119.

 The Committee therefore is proposing to add to Rule 119 a new paragraph (B) to state: ''If otherwise authorized by law, two-way simultaneous audio-visual communications may be used in a proceeding specified in (A)(1) through (6).'' This language is further clarified in the Comment along with a cross-reference to Atkinson and to 42 Pa.C.S. § 5985.

 In order to clarify that the same concept also applies to cases in which testimony is preserved prior to trial, the Committee is suggesting an addition to the Rule 500Comment to indicate that that rule is not intended to preclude the taking of evidence outside the defendant's presence if otherwise provided by law.

[Pa.B. Doc. No. 11-1172. Filed for public inspection July 15, 2011, 9:00 a.m.]

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¹  The Superior Court further held that the error was harmless because it was cumulative of other evidence presented in the hearing.

²  Rule 119 Final Report, 33 Pa.B. 830 (August 30, 2003).

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