THE COURTS
PART I. RULES
[ 237 PA. CODE CHS. 2—5 AND 8 ]
Order Amending Rules 242, 394, 406, 512 and 800 of the Rules of Juvenile Court Procedure; No. 573 Supreme Court Rules Doc.
[42 Pa.B. 4909]
[Saturday, August 4, 2012]
Order Per Curiam
And Now, this 18th day of July, 2012, upon the recommendation of the Juvenile Court Procedural Rules Committee; the proposal having been published for public comment before adoption at 40 Pa.B. 7034 (December 11, 2010), in the Atlantic Reporter (Third Series Advance Sheets, Vol. 7, No. 2, December 24, 2010), and on the Supreme Court's web-page, and an Explanatory Report to be published with this Order:
It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that the modifications to Rules 242, 394, 406, 512, and 800 of the Rules of Juvenile Court Procedure are approved in the following form.
This Order shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective October 1, 2012.
Mr. Justice Saylor files a dissenting statement, which Mr. Justice Baer joins.
Annex A
TITLE 237. JUVENILE RULES
PART I. RULES
Subpart A. DELINQUENCY MATTERS
CHAPTER 2. COMMENCEMENT OF PROCEEDINGS, ARREST PROCEDURES, WRITTEN ALLEGATION, AND PRE-ADJUDICATORY DETENTION
PART D. PRE-ADJUDICATORY DETENTION Rule 242. Detention Hearing.
A. Informing juvenile of rights. Upon commencement of the hearing, the court shall:
1) provide a copy of the written allegation to the juvenile and the juvenile's guardian, if present;
2) inform the juvenile of the right to counsel and to retain private counsel or to be assigned counsel; and
3) inform the juvenile of the right to remain silent with respect to any allegation of delinquency.
B. Manner of hearing.
1) Conduct.
a) The hearing shall be conducted in an informal but orderly manner.
b) The attorney for the Commonwealth shall:
i) attend the hearing; and
ii) present such evidence as the Commonwealth deems necessary to support the written allegation and the need for detention.
2) Recording. If requested by the juvenile or the Commonwealth, or if ordered by the court, the hearing shall be recorded by appropriate means. If not so recorded, full minutes of the hearing shall be kept.
3) Testimony and evidence.
a) All evidence helpful in determining the questions presented, including oral or written reports, may be received by the court and relied upon to the extent of its probative value even though not competent in the hearing on the petition.
b) The juvenile's attorney, the juvenile, if [unrepresented] the juvenile has waived counsel pursuant to Rule 152, and the attorney for the Commonwealth shall be afforded an opportunity to examine and controvert written reports so received.
4) [Presence at hearing] Juvenile's rights. The juvenile shall be present at the detention hearing and the juvenile's attorney or the juvenile, if [unrepresented] the juvenile has waived counsel pursuant to Rule 152, may:
* * * * * Official Note: Rule 242 adopted April 1, 2005, effective October 1, 2005. Amended April 21, 2011, effective July 1, 2011. Amended April 29, 2011, effective July 1, 2011. Amended May 26, 2011, effective July 1, 2011. Amended July 18, 2012, effective October 1, 2012.
Committee Explanatory Reports:
* * * * * Final Report explaining the amendments to Rule 242 published with the Court's Order at 42 Pa.B. 4909 (August 4, 2012).
CHAPTER 3. PRE-ADJUDICATORY PROCEDURES
PART G. TRANSFER FOR CRIMINAL PROSECUTION Rule 394. Transfer Hearing.
* * * * * C. Burden of proof. Unless the provisions of 42 Pa.C.S. § 6355 (g)(1) and (2) apply, the attorney for the Commonwealth shall have the burden of establishing:
1) a prima facie case that the juvenile committed a felony delinquent act; and
2) by a preponderance of the evidence that the public interest is served by transfer of the case to criminal proceedings.
D. Findings.
1) Transfer. At the hearing, the court shall transfer the case to the division or a judge assigned to conduct criminal proceedings if the court finds:
[1)] a) the juvenile is fourteen years old or older at the time of the alleged delinquent act;
[2)] b) notice has been given pursuant to Rule 390;
[3) there is a prima facie showing of evidence that the juvenile committed a felony delinquent act;
4) there are reasonable grounds to believe that transfer of the case for criminal prosecution will serve the public interest by considering all the relevant factors; and
5) there are reasonable grounds to believe that the juvenile is not committable to an institution for the mentally retarded or mentally ill,
Then the court shall transfer the case to the division or a judge of the court assigned to conduct criminal proceedings for prosecution. Otherwise, the court shall schedule an adjudicatory hearing.]
c) the Commonwealth has met its burden of proof pursuant to paragraph (B); and
d) there are reasonable grounds to believe that the juvenile is not committable to an institution for the mentally retarded or mentally ill.
2) No Transfer. If the required findings of paragraph (C)(1) have not been met, the court shall schedule an adjudicatory hearing pursuant to Rule 404.
Comment The transfer hearing ordinarily has two phases. The first phase of the transfer hearing is the ''prima facie phase.'' The court [should] is to determine [if there is] whether the Commonwealth has established a prima facie showing of evidence that the juvenile committed a delinquent act and if an adult committed the offense, it would be considered a felony. If a prima facie showing of evidence is found, the court proceeds to the second phase, known as the ''public interest phase.'' During the ''public interest phase,'' the court [should] is to determine [if the juvenile is amenable to treatment, supervision, or rehabilitation as a juvenile and] what is in the public's interest.
In determining public interest, the court [should balance] is to consider the following factors: 1) the impact of the offense on the victim or victims; 2) the impact of the offense on the community; 3) the threat posed by the juvenile to the safety of the public or any individual; 4) the nature and circumstances of the offense allegedly committed by the juvenile; 5) the degree of the juvenile's culpability; 6) the adequacy and duration of dispositional alternatives available under the Juvenile Act and in the adult criminal justice system; and 7) whether the juvenile is amenable to treatment, supervision, or rehabilitation as a juvenile by considering the following factors: a) age; b) mental capacity; c) maturity; d) the degree of criminal sophistication exhibited by the juvenile; e) previous records, if any; f) the nature and extent of any prior delinquent history, including the success or failure of any previous attempt by the juvenile court to rehabilitate the juvenile; g) whether the juvenile can be rehabilitated prior to the expiration of the juvenile court jurisdiction; h) probation or institutional reports, if any; and 8) any other relevant factors.
The burden of establishing by a preponderance of evidence that the public interest is served by the transfer of the case to criminal court [and that the juvenile is not amenable to treatment, supervision, or rehabilitation in the juvenile system] rests with the Commonwealth unless: 1) a deadly weapon as defined in 18 Pa.C.S. § 2301 (relating to definitions) was used and the juvenile was fourteen years of age at the time of the offense; or the juvenile was fifteen years of age or older at the time of the offense and was previously adjudicated delinquent of a crime that would be considered a felony if committed by an adult; and 2) there is a prima facie case that the juvenile committed a delinquent act that, if committed by an adult, would be classified as rape, involuntary deviate sexual intercourse, aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1) or (2) (relating to aggravated assault), robbery as defined in 18 Pa.C.S. § 3701(a)(1)(i), (ii) or (iii) (relating to robbery), robbery of motor vehicle, aggravated indecent assault, kidnapping, voluntary manslaughter, an attempt, conspiracy, or solicitation to commit any of these crimes or an attempt to commit murder as specified in paragraph (2)(ii) of the definition of ''delinquent act'' in 42 Pa.C.S. § 6302. If the preceding criteria are met, then the burden of proof rests with the juvenile. See 42 Pa.C.S. § 6355 and Rule 800 for suspension of a portion of § 6355(g).
For detention time requirements for juveniles scheduled for a transfer hearing, see Rule 391.
Official Note: Rule 394 adopted April 1, 2005, effective October 1, 2005. Amended April 21, 2011, effective July 1, 2011. Amended July 18, 2012, effective October 1, 2012.
Committee Explanatory Reports:
* * * * * Final Report explaining the amendments to Rule 394 published with the Court's Order at 42 Pa.B. 4909 (August 4, 2012).
CHAPTER 4. ADJUDICATORY HEARING Rule 406. Adjudicatory Hearing.
A. Manner of hearing.
1) The court shall conduct the adjudicatory hearing without a jury, in an informal but orderly manner.
2) The attorney for the Commonwealth shall:
a) attend the hearing; and
b) have the burden of establishing beyond a reasonable doubt that the juvenile committed the delinquent act(s).
* * * * * Official Note: Rule 406 adopted April 1, 2005, effective October 1, 2005. Amended April 21, 2011, effective July 1, 2011. Amended April 29, 2011, effective July 1, 2011. Amended May 26, 2011, effective July 1, 2011. Amended July 18, 2012, effective October 1, 2012.
Committee Explanatory Reports:
* * * * * Final Report explaining the amendments to Rule 406 published with the Court's Order at 42 Pa.B. 4909 (August 4, 2012).
CHAPTER 5. DISPOSITIONAL HEARING
PART B. DISPOSITIONAL HEARING AND AIDS Rule 512. Dispositional Hearing.
A. Manner of hearing. The court shall conduct the dispositional hearing in an informal but orderly manner.
1) Evidence. The court shall receive any oral or written evidence from both parties and the juvenile probation officer that is helpful in determining disposition, including evidence that was not admissible at the adjudicatory hearing.
2) Opportunity to be heard. Before deciding disposition, the court shall give the juvenile and the victim an opportunity to be heard.
3) Advanced communication technology. A court may utilize advanced communication technology pursuant to Rule 129 for the appearance of the juvenile or the witness only if the parties consent.
4) Prosecutor's presence. The attorney for the Commonwealth shall attend the hearing.
* * * * *
Comment * * * * * Under paragraph (A)(2), prior to deciding disposition, the court is to give the victim an opportunity to submit an oral and/or written victim-impact statement if the victim so chooses.
Before deciding disposition, the court may hear oral argument from the parties' attorneys.
* * * * * Official Note: Rule 512 adopted April 1, 2005, effective October 1, 2005. Amended May 17, 2007, effective August 20, 2007. Amended April 21, 2011, effective July 1, 2011. Amended April 29, 2011, effective July 1, 2011. Amended May 16, 2011, effective July 1, 2011. Amended May 26, 2011, effective July 1, 2011. Amended July 18, 2012, effective October 1, 2012.
Committee Explanatory Reports:
* * * * * Final Report explaining the amendments to Rule 512 published with the Court's Order at 42 Pa.B. 4909 (August 4, 2012).
CHAPTER 8. SUSPENSIONS Rule 800. Suspensions of Acts of Assembly.
This rule provides for the suspension of the following Acts of Assembly that apply to delinquency proceedings only:
* * * * * 10) The Act of July 9, 1976, P. L. 586, No. 142, § 2, 42 Pa.C.S. § 6304(a)(2), which provides that juvenile probation officers may receive and examine complaints for the purposes of commencing proceedings, is suspended only insofar as the Act is inconsistent with Rules 231 and 330, which provide that the District Attorney may file a certification that requires an attorney for the Commonwealth to initially receive and approve written allegations and petitions.
11) The Act of July 9, 1976, P. L. 586, No. 142, § 2, 42 Pa.C.S. § 6331, which provides for the filing of a petition with the court within twenty four hours or the next business day of the admission of the juvenile to detention or shelter care, is suspended only insofar as the Act is inconsistent with the filing of a petition within twenty-four hours or the next business day from the detention hearing if the juvenile is detained under Rule 242.
12) The Act of July 9, 1976, P. L. 586, No. 142, § 2, 42 Pa.C.S. § 6336(b), which provides that the district attorney, upon request of the court, shall present the evidence in support of the petition and otherwise conduct the proceedings on behalf of the Commonwealth, is suspended only insofar as the Act is inconsistent with Rules 242(B)(1)(b), 406(A)(2)(b), and 512(A), which provide the district attorney shall present the evidence in support of the petition and otherwise conduct the proceedings on behalf of the Commonwealth.
13) The Act of July 9, 1976, P. L. 586, No. 142, § 2, 42 Pa.C.S. § 6323(a)(2), which provides that a delinquent child may be referred for an informal adjustment by a juvenile probation officer, is suspended only insofar as the Act is inconsistent with Rule 312, which provides that only an alleged delinquent child may be referred for an informal adjustment because the filing of informal adjustment shall occur prior to the filing of a petition.
[13)] 14) Section 5720 of the Wiretapping and Electronic Surveillance Control Act, Act of October 4, 1978, P. L. 831, No. 164, 18 Pa.C.S. § 5720, is suspended as inconsistent with Rule 340 only insofar as the section may delay disclosure to a juvenile seeking discovery under Rule 340(B)(6); and Section 5721(b) of the Act, 18 Pa.C.S. § 5721(b), is suspended only insofar as the time frame for making a motion to suppress is concerned, as inconsistent with Rules 347 and 350.
[14)] 15) The Act of July 9, 1976, P. L. 586, No. 142, § 2, 42 Pa.C.S. § 6340(c), which provides consent decree shall remain in force for six months unless the child is discharged sooner by probation services with the approval of the court, is suspended only insofar as the Act is inconsistent with the requirement of Rule 373 that a motion for early discharge is to be made to the court.
[15)] 16) The Act of July 9, 1976, P. L. 586, No. 142, § 2, 42 Pa.C.S. § 6335, which provides for a hearing within ten days of the juvenile's detention unless the exceptions of (a)(1) & (2) or (f) are met, is suspended only insofar as the Act is inconsistent with Rule 391, which provides for an additional ten days of detention if a notice of intent for transfer to criminal proceedings has been filed.
17) The Act of July 9, 1976, P. L. 586, No. 142, § 2, 42 Pa.C.S. § 6355(g), which provides the burden of establishing by a preponderance of evidence that the public interest is served by the transfer of the case to criminal court and that a child is not amenable to treatment, supervision, or rehabilitation as a juvenile shall rest with the Commonwealth unless the exceptions of paragraphs (g)(1) and (2) apply, is suspended only insofar as the Act is inconsistent with Rule 394, which provides only the burden of establishing by a preponderance of evidence that the public interest is served by the transfer of the case to criminal court shall rest with the Commonwealth unless the exceptions of paragraph (g)(1) and (2) apply.
[16)] 18) The Act of July 9, 1976, P. L. 586, No. 142, § 2, 42 Pa.C.S. § 6353(a), which requires dispositional review hearings to be held at least every nine months when a juvenile is removed from the home, is suspended only insofar as it is inconsistent with the requirement of Rule 610, which requires dispositional review hearings to be held at least every six months.
Comment The authority for suspension of Acts of Assembly is granted to the Supreme Court by Article V § 10(c) of the Pennsylvania Constitution. See also Rule 102.
The partial suspension of 42 Pa.C.S. § 6355(g) in paragraph (17) is due to the redundancy of proving the juvenile is not amenable to treat- ment, supervision, and rehabilitation, which is a factor already considered by the court in 42 Pa.C.S. § 6355(a)(4)(iii)(G). Pursuant to 42 Pa.C.S. § 6355(a)(4)(iii)(G), the court must find that there are reasonable grounds to believe that the public interest is served by the transfer of the case for criminal prosecution while considering whether the juvenile is amenable to treatment, supervision, and rehabilitation among other enumerated factors. Because the court considers amenability to treatment, supervision, and rehabilitation as one of many enumerated factors, the court does not need to hear additional evidence later in the proceedings. As provided in 42 Pa.C.S. § 6355(a)(4)(iii)(G), the standard of proof is reasonable grounds.
Official Note: Rule 800 adopted April 1, 2005, effective October 1, 2005. Amended December 30, 2005, effective immediately. Amended March 23, 2007, effective August 1, 2007. Amended February 26, 2008, effective June 1, 2008. Amended March 19, 2009, effective June 1, 2009. Amended February 12, 2010, effective immediately. Amended April 21, 2011, effective July 1, 2011. Amended July 18, 2012, effective October 1, 2012.
Committee Explanatory Reports:
* * * * * Final Report explaining the amendments to Rule 800 published with the Court's Order at 42 Pa.B. 4909 (August 4, 2012).
EXPLANATORY REPORT
July 2012The Supreme Court of Pennsylvania has adopted the modifications to Rules 242, 394, 406, 512, and 800 with this Recommendation. These changes are effective October 1, 2012.
Background
The Interbranch Commission on Juvenile Justice (ICJJ) Report specifically addresses the special ethical obligations of prosecutors, including their role and function as ''ministers of justice.'' It is the prosecutors' function to assure the safety of the community and protect the right of victims, while applying a balanced approach to restorative justice, rather than punishment.1
Looking at the ICJJ Recommendations, the Committee believes that the Rules of Juvenile Court Procedure need to clarify that the prosecutor must prosecute. It has been brought to the Committee's attention that juvenile probation officers in some judicial districts are performing this function. Therefore, the following changes to the rules address the prosecutors' function, burden of proof, and presence at juvenile hearings.
These changes highlight the need to discontinue the practice of allowing the juvenile probation officer to prosecute the juvenile. Pursuant to the Juvenile Act, the duties of the juvenile probation officer do not include prosecuting the case. See 42 Pa.C.S. § 6304.
Rule 242. Detention Hearing
The changes to this rule provide that the attorney for the Commonwealth must present the evidence. The Juvenile Act provides that the attorney for the Commonwealth, at the request of the court, shall present the evidence in support of the petition. See 42 Pa.C.S. § 6336(b). Rule 800 suspends the Juvenile Act only by removing the ''at the request of the court'' language thereby making the prosecutor's presence mandatory.
It is the role of the prosecutor to put forth the evidence on behalf of the Commonwealth. This duty cannot be performed by a juvenile probation officer, master, judge, or any other person.
Rule 394. Transfer Hearing
This rule clarifies the allocation of the burden of proof.
Unless the exceptions of 42 Pa.C.S. § 6355 (g)(1) and (2) apply, the attorney for the Commonwealth has the burden of establishing that: 1) there is a prima facie showing that the juvenile committed a felony delinquent act; and 2) there is a preponderance of evidence showing that public interest is served by the transfer.
If 42 Pa.C.S. § 6355 (g)(1) and (2) apply, the juvenile has the burden of establishing by a preponderance of evidence that public interest is served by adjudicating the juvenile in juvenile court.
This rule eliminates the requirement ''and that a child is not amenable to treatment, supervision, or rehabilitation as a juvenile'' from the Juvenile Act in 42 Pa.C.S. § 6355(g) because it is already included as a factor in determining whether public interest is served by the transfer of the juvenile case to criminal proceedings in 42 Pa.C.S. § 6355(a)(4)(iii)(G). See Rule 800 and its Comment.
Rule 406. Adjudicatory Hearing
This rule requires the attorney for the Commonwealth to present the evidence in support of the petition and to establish beyond a reasonable doubt that the juvenile committed the delinquent act(s). See Rule 800 for suspension of the Juvenile Act by eliminating ''at the request of the court'' from 42 Pa.C.S. § 6336(b). The presence of the prosecutor at this hearing is mandatory.
Rule 512. Dispositional Hearing
This rule provides that the juvenile, the attorney for the Commonwealth, and the juvenile probation officer may submit evidence for the court's consideration in determining the disposition of the juvenile. The victim's testimony may be presented through the attorney for the Commonwealth. The attorney for the Commonwealth may decide not to present evidence as to the disposition of the juvenile; however, the prosecutor must be present at this hearing.
Rule 800. Suspensions of Acts of Assembly
Section 6336(b) of the Juvenile Act requires that the attorney for the Commonwealth present evidence in support of the petition at the request of the court. The attorney for the Commonwealth must attend every proceeding and present the evidence. The ''at the request of the court'' language is removed by this suspension.
As stated supra, it is not the role of any other person to perform this prosecutorial function, which has been the practice in some counties. Juvenile probation officers, masters, judges, and other persons should not perform any functions of the prosecutor. It is the attorney for the Commonwealth exclusively who represents the interests of this Commonwealth.
Additionally, § 6355(g) of the Juvenile Act is suspended in part by eliminating the need to prove twice whether the juvenile is amenable to treatment, supervision, and rehabilitation in the juvenile system. This is a duplicative requirement because amenability to treatment is required to be proven under the public interest prong of § 6355(a)(4)(iii)(G).
Dissenting Statement
Mr. Justice Saylor I respectfully dissent to the partial suspension of Section 6355(g) of the Judicial Code, 42 Pa.C.S. § 6355(g), governing transfer of delinquency to criminal proceedings. In relevant part, this statute merely allocates the burden of proof to the Commonwealth to establish that: 1) the public interest is served by the transfer of a case to adult criminal court; and 2) the child is not amenable to treatment, supervision, or rehabilitation as a juvenile. Id.
In its Explanatory Report, the Juvenile Procedural Rules Committee indicates that the specific allocation of the burden of proof pertaining to non-amenability is being ''eliminated'' from the statute, since non-amenability is subsumed within the broader assessment of public interest. While this may be true, the Legislature has placed particular emphasis on the non-amenability factor by lifting it from a list of seven considerations relevant to the overall public interest determination, see id. § 6355(a)(4), and attaching a specific burden of proof, see id. § 6355(g). Given the profound substantive consequences associated with a transfer from juvenile to adult criminal court, I fail to see the justification for adjusting such allocation under the rubric of procedural rulemaking.
Although I have had reservations, I have abided the incorporation of substantive aspects of the statutory transfer scheme (and various other policy matters) into our Juvenile Procedural Rules. I did so, because our Juvenile Procedural Rules Committee recently undertook the ambitious project of drafting a set of comprehensive rules; I believed the incorporation of statutory provisions into such rules provided salutary guidance to practitioners; and I found the substantive inroads to be generally consistent with governing statutory provisions. I also supported some modest suspensions in areas I believed to be procedural or quasi-procedural in nature. See Pa.R.J.C.P. 800.
However, I do not support adjustments to burdens of proof assigned by the policymaking branch in matters steeped in substantive consequences. To the degree that any clarification of such affairs is necessary, I believe the appropriate vehicle is through statutory construction under the decisional law.
Mr. Justice Baer joins this Dissenting Statement.
[Pa.B. Doc. No. 12-1448. Filed for public inspection August 3, 2012, 9:00 a.m.] _______
1 Interbranch Commission on Juvenile Justice, Report, May 2010, at page 47.
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