THE COURTS
Title 234—RULES OF CRIMINAL PROCEDURE
[ 234 PA. CODE CHS. 5 AND 8 ]
Order Adopting New Rules 840—845, Amending Rules 568, 800, 807 and 809 and Approving the Revision of the Comment to Rule 808 of the Rules of Criminal Procedure; No. 437 Criminal Procedural Rules Doc.
[43 Pa.B. 4715]
[Saturday, August 17, 2013]
Order Per Curiam
And Now, this 31st day of July, 2013, upon the recommendation of the Criminal Procedural Rules Committee; the proposal having been published before adoption at 42 Pa.B. 6254 (October 6, 2012), and in the Atlantic Reporter (Second Series Advance Sheets, Vol. 967), 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 new Pennsylvania Rules of Criminal Procedure 840 through 845 and the amendments to Pennsylvania Rules of Criminal Procedure 568, 800, 807, and 809 are adopted and the revision to the Comment to Pennsylvania Rule of Criminal Procedure 808 is 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, 2013.
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
CHAPTER 5. PRETRIAL PROCEDURES IN COURT CASES
PART G. Procedures Following Filing of Information Rule 568. Notice of Defense of Insanity or Mental Infirmity; Notice of Expert Evidence of a Mental Condition.
(A) NOTICE BY DEFENDANT
* * * * * (2) Notice of Expert Evidence of Mental Condition
[A] Except as provided in Rule 841, a defendant who intends to introduce expert evidence relating to a mental disease or defect or any other mental condition of the defendant bearing (1) on the issue of guilt, or (2) in a capital case, on the issue of punishment, shall file with the clerk of courts not later than the time required for filing an omnibus pretrial motion provided in Rule 579 a notice of the intention to offer this expert evidence, and shall serve a copy of the notice and a certificate of service on the attorney for the Commonwealth.
* * * * *
Comment This rule, which is derived from paragraphs (C)(1)(b), (c)—(f), and (D) of Rule 573 (Pretrial Discovery and Inspection) and was made a separate rule in 2006, sets forth the notice procedures when a defendant intends to raise a defense of insanity or mental infirmity, or introduce evidence relating to a mental disease or defect or any other mental condition at trial.
For the procedures related to the determination of mental retardation precluding imposition of a sentence of death, see Chapter 8 Part (B).
The reference in paragraph (A) to Rule 579 (Time for Omnibus Pretrial Motion and Service) contemplates consideration of the exceptions to the time for filing set forth in Rule 579(A).
* * * * * Official Note: Adopted January 27, 2006, effective August 1, 2006; amended July 31, 2013, effective October 1, 2013.
Committee Explanatory Reports:
* * * * * Final Report explaining the July 31, 2013 amendment to paragraph (A)(2) and Comment revisions regarding notice of mental retardation published with the Court's Order at 43 Pa.B. 4722 (August 17, 2013).
CHAPTER 8. SPECIAL RULES FOR CASES IN WHICH DEATH SENTENCE IS AUTHORIZED
PART A. GUILT AND PENALTY DETERMINATION PROCEDURES Rule 800. Applicability of [Subchapter] Part A.
Except as provided in Rule 801, the rules [of this chapter] in Part A shall apply to the guilt and penalty determination phases of all cases in which the imposition of a sentence of death is authorized by law.
Comment The 1990 amendment to this rule [makes] made it clear that Part A of Chapter 8 applies to both the guilt determination and sentencing phases of cases in which the death penalty is authorized. The chapter was amended in 2013 by the addition of Part B providing special procedures for seeking to preclude imposition of a sentence of death by reason of the defendant's mental retardation.
Except as provided in [this chapter] Part A, trial and retrial procedures in death penalty cases are governed by the Rules of Criminal Procedure generally.
For sentencing generally in death penalty cases, see the Sentencing Code, 42 Pa.C.S. § 9711.
The sentencing procedures in [this chapter] Part A and in the Sentencing Code also apply when the trial court orders a new sentencing proceeding, or when the Supreme Court vacates a sentence of death and remands a case for redetermination of sentence pursuant to 42 Pa.C.S. § 9711(h)(4).
When a jury is empaneled for the first time for sentencing, or for resentencing, the jury trial rules (Chapter 6) apply. See, for example, Rule 631 (Examination and Challenges of Trial Jurors).
[This chapter] Part A does not provide procedures for those cases in which the Supreme Court vacates a sentence of death and remands the case to the trial court for the imposition of a life imprisonment sentence. See 42 Pa.C.S. § 9711(h)(4).
For post-verdict procedures in cases in which a sentence of death is authorized by law, see Rule 811.
Official Note: Previous Rule 351 adopted September 22, 1976, effective November 1, 1976; rescinded April 2, 1978, effective immediately. Present Rule 351 adopted July 1, 1985, effective August 1, 1985; Comment revised February 1, 1989, effective July 1, 1989; amended October 29, 1990, effective January 1, 1991; renumbered Rule 800 and amended March 1, 2000, effective April 1, 2001; amended October 1, 2012, effective November 1, 2012; amended July 31, 2013, effective October 1, 2013.
Committee Explanatory Reports:
* * * * * Final Report explaining the July 31, 2013 adoption of the new rules establishing the procedures for challenging the defendant's competency to be executed published with the Court's Order at 43 Pa.B. 4722 (August 17, 2013).
Rule 807. Sentencing Verdict Slip.
(A) JURY
(1) [In] Except as provided in paragraph (2), in all cases in which the sentencing proceeding is conducted before a jury, the judge shall furnish the jury with a jury sentencing verdict slip in the form provided by Rule 808.
(2) In cases in which the jury is to determine if imposition of a sentence of death is precluded due to the defendant's mental retardation, the judge shall furnish the jury with the sentencing verdict slip in the form required by Rule 845. If the jury subsequently does not find unanimously that the defendant is mentally retarded, the judge then shall furnish the jury with a jury sentencing verdict slip in the form provided by Rule 808.
(3) Before the jury retires to deliberate, the judge shall meet with counsel and determine those aggravating and mitigating circumstances of which there is some evidence. The judge shall then set forth those circumstances on the sentencing verdict slip using the language provided by law.
[(3)] (4) The trial judge shall make the completed sentencing verdict slip part of the record.
(B) TRIAL JUDGE
(1) In all cases in which the defendant has waived a sentencing proceeding before a jury and the trial judge determines the penalty, including those in which the defendant seeks to have the imposition of a sentence of death precluded by reason of mental retardation, the trial judge shall complete a sentencing verdict slip in the form provided by Rule 809.
(2) The trial judge shall make the completed sentencing verdict slip part of the record.
Comment The purpose of this rule is to provide statewide, uniform jury and trial judge sentencing verdict slips in death penalty cases. The jury sentencing verdict slip is not intended to replace those jury instructions required by law. See Sentencing Code, 42 Pa.C.S. § 9711(c). For the sentencing procedure under paragraph (B), see Sentencing Code, 42 Pa.C.S. § 9711(b).
Official Note: Rule 357 adopted February 1, 1989, effective July 1, 1989; renumbered Rule 806 and amended March 1, 2000, effective April 1, 2001; renumbered Rule 807 June 4, 2004, effective November 1, 2004; amended July 31, 2013, effective October 1, 2013.
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 July 31, 2013 amendments regarding cases in which the defendant has introduced evidence of mental retardation published with the Court's Order at 43 Pa.B. 4722 (August 17, 2013).
Rule 808. Form for Jury Sentencing Verdict Slip.
* * * * *
Comment * * * * * The list of aggravating and mitigating circumstances completed by the judge in Part I, and by the jury foreperson in Part II, should use the language provided by law for each circumstance. See Sentencing Code, 42 Pa.C.S. § 9711(d) and (e). The judge's instructions on the weighing of aggravating and mitigating circumstances must comply with Mills v. Maryland, 108 S.Ct. 1860 (1988).
See Rule 845 for the jury verdict slip form to be used when the jury is to determine if imposition of the death penalty is precluded due to the defendant's mental retardation.
Official Note: Rule 358A adopted February 1, 1989, effective July 1, 1989; renumbered Rule 807 and amended March 1, 2000, effective April 1, 2001; renumbered Rule 808 June 4, 2004, effective November 1, 2004; Comment revised July 31, 2013, effective October 1, 2013.
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 July 31, 2013 Comment revision cross-referencing Rule 845 published with the Court's Order at 43 Pa.B. 4722 (August 17, 2013).
Rule 809. Form for Trial Judge Sentencing Verdict Slip.
IN THE COURT OF COMMON PLEAS OF ______ COUNTY, PENNSYLVANIA
CRIMINAL
COMMONWEALTH OF PENNSYLVANIA : vs. : NO. ______ :
FIRST DEGREE MURDER
SENTENCING VERDICT SLIP* * * * * C. The findings on which the sentence of life imprisonment is based are:
_____ A sentence of death is precluded because the defendant is mentally retarded.
OR
_____ 1. No aggravating circumstance exists.
_____ 2. The mitigating circumstance(s) (is) (are) not outweighed by the aggravating circumstance(s).
* * * * * Official Note: Rule 358B adopted February 1, 1989, effective July 1, 1989; renumbered Rule 808 and Comment revised March 1, 2000, effective April 1, 2001; renumbered Rule 809 June 4, 2004, effective November 1, 2004; amended July 31, 2013, effective October 1, 2013.
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 July 31, 2013 amendment regarding findings of mental retardation published with the Court's Order at 43 Pa.B. 4722 (August 17, 2013).
PART B. PROCEDURES FOR SEEKING TO PRECLUDE IMPOSITION OF A SENTENCE OF DEATH BY REASON OF THE DEFENDANT'S MENTAL RETARDATION (Editor's Note: Rule 840—845 are new and printed in regular type to enhance readability.)
Rule
840. Scope. 841. Notice of Mental Retardation Precluding Imposition of Sentence of Death. 842. Examination of the Defendant by Mental Health Expert. 843. Optional Pretrial Hearing. 844. Sentencing Procedures in Cases in which the Defendant's Mental Retardation is Asserted. 845. Form for Sentencing Verdict Slip in Cases in which the Defendant's Mental Retardation is Asserted. Rule 840. Scope.
The rules in Part B provide the procedure for determining if imposition of the death penalty is precluded due to the defendant's mental retardation.
Comment These rules are intended to apply only to cases arising within the context of the United States Supreme Court decision in Atkins v. Virginia, 536 U.S. 304 (2002), that held that the execution of a mentally retarded criminal is cruel and unusual punishment prohibited by the Eighth Amendment. Pursuant to Atkins, the Pennsylvania Supreme Court held in Commonwealth v. Sanchez, 614 Pa. 1, 36 A.3d 24 (2011), that a convicted defendant found mentally retarded is ineligible for the death penalty.
Official Note: New Rule 840 adopted July 31, 2013, effective October 1, 2013.
Committee Explanatory Reports:
Final Report explaining the July 31, 2013 adoption of the new rule published with the Court's Order at 43 Pa.B. 4722 (August 17, 2013).
Rule 841. Notice of Mental Retardation Precluding Imposition of Sentence of Death.
(A) Notice of Mental Retardation Precluding Imposition of a Sentence of Death
A defendant who intends to offer evidence of mental retardation that would preclude the imposition of a sentence of death shall file with the clerk of courts not later than 90 days after arraignment, or within such other time as allowed by the court upon cause shown, a notice of the intention to offer the evidence and certification of service on the attorney for the Commonwealth.
(1) The notice and certification shall be signed by the attorney for the defendant or the defendant if unrepresented.
(2) The notice shall contain specific available information as to the nature and extent of the alleged mental retardation and the names and addresses of witnesses, expert or otherwise, whom the defendant intends to call to establish mental retardation.
(B) Notice of Expert Evidence of Mental Retardation
A defendant who intends to introduce expert evidence relating to mental retardation that would preclude imposition of a sentence of death shall file with the clerk of courts not later than 90 days after arraignment, or within such other time as allowed by the court upon cause shown, a notice of the intention to offer the expert evidence and a certification of service on the attorney for the Commonwealth.
(1) The notice and certification shall be signed by the attorney for the defendant or the defendant if unrepresented.
(2) The notice shall contain specific available information as to the nature and extent of the alleged mental retardation, and the names and addresses of the expert witness(es) whose evidence the defendant intends to introduce.
(C) Reciprocal Notice of Witnesses
Within 30 days after receipt of the defendant's notice of mental retardation that would preclude the imposition of a sentence of death or notice of expert evidence of mental retardation or within such other time as allowed by the court upon cause shown, the attorney for the Commonwealth shall file and serve upon the defendant's attorney, or the defendant if unrepresented, written notice of the names and addresses of all witnesses the attorney for the Commonwealth intends to call to disprove or discredit the defendant's claim of mental retardation.
(D) If prior to or during trial a party learns of an additional witness or additional information which, if known, should have been included in the notice furnished under paragraphs (A), (B), or (C), the party shall promptly notify the other party's attorney, or if unre-presented, the other party, of the existence and identity of such additional witness.
(E) After docketing the notice, the clerk of courts immediately shall transmit the notice to the trial judge.
Comment This rule sets forth the notice procedures when a defendant intends to assert his or her mental retardation to preclude imposition of the death penalty pursuant to Atkins v. Virginia, 536 U.S. 304 (2002) and Commonwealth v. Sanchez, 614 Pa. 1, 36 A.3d 24 (2011). Notices filed in accordance with this rule fall within the definition of ''motion'' in Rule 575 and must comply with the provisions of Rules 575 and 576.
The requirement in paragraph (B) for a separate notice of intention to introduce expert evidence is intended to alert the Commonwealth that there will be expert evidence. See Rule 842 regarding the requirement that any expert who has examined the defendant must prepare a written report stating the subject matter, the substance of the facts relied upon, and a summary of the expert's opinions and the grounds for each opinion.
Paragraph (E) emphasizes the requirement that the trial judge be informed of the filing of the notice at the earliest time to ensure the prompt collection of all materials relevant to the issue of the defendant's mental retardation.
Nothing in this rule precludes the trial judge from raising the issue of the defendant's mental retardation sua sponte.
Official Note: New Rule 841 adopted July 31, 2013, effective October 1, 2013.
Committee Explanatory Reports:
Final Report explaining the July 31, 2013 adoption of the new rule published with the Court's Order at 43 Pa.B. 4722 (August 17, 2013).
Rule 842. Examination of the Defendant by Mental Health Expert.
(A) EXAMINATION OF DEFENDANT
(1) BY AGREEMENT
(a) The defendant, the defendant's counsel, and the attorney for the Commonwealth may agree to an examination of the defendant by the mental health expert(s) designated in the agreement for the purpose of determining mental retardation that would preclude imposition of a sentence of death.
(b) The agreement shall be in writing and signed by the defendant, the defendant's counsel, and the attorney for the Commonwealth, or made orally on the record.
(c) Unless otherwise agreed, the mental health expert(s) promptly shall prepare a written report stating the subject matter, the substance of the facts relied upon, and a summary of the expert's opinions and the grounds for each opinion.
(2) BY COURT ORDER
(a) If the defendant has provided notice of mental retardation that would preclude the imposition of a sentence of death or notice of intention to introduce expert evidence relating to mental retardation that would preclude imposition of a sentence of death, upon motion of the attorney for the Commonwealth, the court shall order that the defendant submit to an examination by one or more mental health experts specified in the motion by the Commonwealth for the purpose of determining the condition of mental retardation put in issue by the defendant.
(b) When the court orders an examination pursuant to this paragraph, the court on the record shall advise the defendant in person and in the presence of the defendant's counsel:
(i) of the purpose of the examination and the contents of the court's order;
(ii) that the information obtained from the examination may be used at trial; and
(iii) the potential consequences of the defendant's refusal to cooperate with the Commonwealth's mental health expert(s).
(c) The court's order shall:
(i) specify who may be present at the examination; and
(ii) specify the time within which the mental health expert(s) must submit the written report of the examination.
(d) Upon completion of the examination of the defendant, the mental health expert(s), within the time specified by the court as provided in paragraph (A)(2)(c)(ii), shall prepare a written report stating the subject matter, the substance of the facts relied upon, and a summary of the expert's opinions and the grounds for each opinion.
(B) DISCLOSURE OF REPORTS BETWEEN PARTIES
(1) The mental health experts' reports shall be confidential, and not of public record.
(2) Any mental health expert whom either party intends to call to testify concerning the defendant's condition of mental retardation must prepare a written report. No mental health expert may be called to testify concerning the defendant's condition of mental retardation until the expert's report has been disclosed as provided herein.
(3) The court shall set a reasonable time after the Commonwealth's expert's examination for the disclosure of the reports of the parties' mental health experts.
(C) PROTECTIVE ORDERS
Upon a sufficient showing, the court may at any time order that the disclosure of a report or reports be restricted or deferred for a specified time, or make such other order as is appropriate. Upon motion of any party, the court may permit the showing to be made in camera.
(D) SANCTIONS FOR NON-COMPLIANCE
At any time during the course of the proceedings, if the court determines there has been a failure to comply with this rule, upon motion or sua sponte, the court may order compliance, may grant a continuance, or may grant other appropriate relief. Upon motion, any hearing to determine if there has been a failure to comply may be held in camera and the record sealed until after disposition of the case.
Comment This rule establishes the procedures for the examination of the defendant by a mental health expert(s) retained by the prosecution pursuant to an agreement by the parties, see paragraph (A)(1), or a court order, see paragraph (A)(2), in cases in which the defendant's mental retardation has been raised to preclude the imposition of a sentence of death.
''Mental health expert,'' as used in this rule, includes a psychiatrist, a licensed psychologist, a physician, or any other expert in the field of mental health who will be of substantial value in the determination of the issues raised by the defendant concerning his or her mental retardation.
Examination of Defendant
Paragraph (A)(1) is intended to encourage the defendant, the defendant's counsel, and the attorney for the Commonwealth to agree to an examination of the defendant by the Commonwealth's mental health expert(s).
When the defendant, the defendant's attorney, and the attorney for the Commonwealth agree that the defendant will be examined under this rule, at a minimum, the agreement should specify the time, place, and conditions of the examination, who may be present during the examination, and the time within which the parties will disclose the reports of their experts.
It is intended that the examining mental health expert(s), whether appointed pursuant to the agreement of the parties or order of court, have substantial discretion in how to conduct an examination. The conduct of the examination, however, must conform to generally recognized and accepted practices in that profession. Therefore, the examination of the defendant may consist of such interviewing, clinical evaluation, and psychological testing as the examining mental health expert(s) considers appropriate, within the limits of non-experimental, generally accepted medical, psychiatric, or psychological practices.
Nothing in this rule is intended to limit the number of examining experts the defense may use, nor is it to be construed as a limitation on any party with regard to the number of other expert or lay witnesses they may call to testify concerning the defendant's mental retardation.
The court is required in paragraph (A)(2)(b) to inform the defendant, in person on the record, about the request for a compelled examination. See Rule 119 (Use of Two-Way Simultaneous Audio-Visual Communication in Criminal Proceedings). The court is to explain that the examination is being conducted at the request of the attorney for the Commonwealth and that the purpose of the examination is to obtain information about the defendant's mental condition specifically with regard to mental retardation. In addition, the court should explain the procedures for the examination that are included in the court's order as set forth in paragraph (A)(2)(b), and explain the potential consequences of the defendant's failure to cooperate with the examination.
Paragraph (A)(2)(d) requires that the examining mental health expert(s) promptly prepare a written report and sets forth the minimum contents of that report. It is intended that the scope of the mental health expert's report be limited in the court's order to matters related to the defendant's mental retardation.
Disclosure of Reports
After the examination of the defendant by the Commonwealth's mental health expert(s) is completed and the mental health expert's report has been prepared, the defendant and the Commonwealth are required in paragraph (B) to disclose the reports that are made by any experts either party intends to call to testify concerning the defendant's mental retardation. The reports must be in writing, and should comply with the content requirements in paragraph (A)(2)(d). An expert witness, whether or not the expert witness has examined the defendant, cannot testify until the report is disclosed as provided in paragraph (B)(2) and (3). There may be situations in which the court would have to call a short recess to permit the expert to complete a written report and to give the parties an opportunity to review the report, such as when a mental health expert(s) is observing the defendant during the trial and will be called to testify on these observations.
When the parties agree to the examination, the time for the disclosure of the reports should be set by the agreement of the parties. The agreement should permit adequate time to review the reports and prepare for the proceeding. If the parties cannot agree, in cases proceeding pursuant to court order under paragraph (A)(2), the court should set the time for the disclosure of reports, which should afford the parties adequate time to review the reports and prepare for the proceeding.
Establishing a reasonable time frame and providing for the reciprocal disclosure are intended to further promote the fair handling of these cases. In no case should the disclosure occur until after the defendant has been examined by the Commonwealth's mental health expert(s) and the mental health expert(s) has prepared and submitted a written report.
There may be cases in which, although proceeding pursuant to a court order, the parties, with the court's approval, agree to an earlier time for disclosure consistent with the purposes of this rule. This rule would not preclude such an agreement.
The procedures in paragraph (C) are similar to the existing procedures for protective orders in Rule 573(F).
Because the question of whether the imposition of a sentence of death is precluded due to the defendant's mental retardation ordinarily is a question reserved for sentencing, use of information obtained from the examination of a defendant by a Commonwealth's expert is not to be disclosed or used until after the defendant has been found guilty. This may require that the Commonwealth's examination should be sealed until the penalty phase of the defendant's trial takes place. See Commonwealth v. Sartin, 561 Pa. 522, 751 A.2d 1140 (2000). However, where the parties have agreed to a pretrial determination of the issue pursuant to Rule 843, earlier disclosure may be required.
See the Pennsylvania Rules of Evidence concerning the admissibility of the experts' reports and information from any examinations of the defendant by an expert.
Sanctions
The sanctions authorized by paragraph (D) may be imposed on any person who has failed to comply with any of the provisions of this rule, including the attorney for the Commonwealth, the defendant, the defendant's counsel, or an expert.
When the defendant has refused to cooperate in the examination by the Commonwealth's mental health expert(s), before imposing a sanction, the court should consider whether the defendant's failure to cooperate (1) was intentional, (2) was the result of the defendant's mental condition, and (3) will have an adverse and unfair impact on the Commonwealth's ability to respond to the defendant's claim. The court also should consider whether ordering the defendant to resubmit to the examination would result in the defendant's cooperation.
Official Note: New Rule 842 adopted July 31, 2013, effective October 1, 2013.
Committee Explanatory Reports:
Final Report explaining the July 31, 2013 adoption of the new rule published with the Court's Order at 43 Pa.B. 4722 (August 17, 2013).
Rule 843. Optional Pretrial Hearing.
(A) If the parties agree, the issue of the defendant's mental retardation precluding imposition of a sentence of death shall be determined by the judge after a pretrial evidentiary hearing.
(B) The defendant shall appear in person with counsel at the hearing.
(C) The defendant shall have the burden of going forward with the evidence.
(D) No later than the beginning of the evidentiary hearing, the judge shall advise the defendant that, by agreeing to have the issue of his or her mental retardation decided pretrial, the defendant, if found not mentally retarded and later convicted, will not be permitted to seek a preclusion of the imposition of a sentence of death due to mental retardation with a jury. In these cases, however, the defendant may introduce relevant evidence concerning his or her mental state at the guilt phase and the penalty phase, including evidence in support of statutory mitigation.
(E) The attorney for the Commonwealth and the defendant's attorney may introduce evidence and cross-examine any witness, including the examining mental health experts. The judge may call and interrogate witnesses as provided by law.
(F) Within 30 days of the completion of the evidentiary hearing, the judge shall enter an order finding either that the defendant is mentally retarded and therefore is precluded from receiving a sentence of death or that the defendant is not mentally retarded.
Comment In Commonwealth v. Sanchez, 614 Pa. 1, 36 A.3d 24 (2011), the Pennsylvania Supreme Court held that, pursuant to Atkins v. Virginia, 536 U.S. 304 (2002), the parties may agree to a pretrial determination of the defendant's ineligibility for the death penalty to be made by the trial judge. The defendant has the burden of proof by a preponderance of the evidence to prove mental retardation. See Commonwealth v. Sanchez, 614 Pa. at 65, 36 A.3d at 62-63. If the trial judge finds the defendant is eligible for the death penalty, the defendant may still introduce relevant evidence concerning his or her mental state during the guilt and penalty phases of trial, including evidence in support of statutory mitigation.
Official Note: New Rule 843 adopted July 31, 2013, effective October 1, 2013.
Committee Explanatory Reports:
Final Report explaining the July 31, 2013 adoption of the new rule published with the Court's Order at 43 Pa.B. 4722 (August 17, 2013).
Rule 844. Sentencing Procedures in Cases in which the Defendant's Mental Retardation is Asserted.
(A) Unless the issue is decided pretrial pursuant to Rule 843, in a case in which the defendant has asserted that imposition of a sentence of death is precluded by reason of his or her mental retardation, after a return of a verdict of guilty of murder in the first degree, a sentencing hearing shall be held in which all sentencing evidence shall be presented, including, but not limited to, evidence of the defendant's mental retardation and evidence of aggravating and mitigating circumstances.
(B) In cases in which the defendant has asserted his or her mental retardation as provided in paragraph (A) and the sentencing hearing is conducted before the jury, the following procedures shall apply:
(1) After presentation of the evidence, the judge shall determine if sufficient evidence exists for the jury to decide whether the imposition of a sentence of death should be precluded by reason of mental retardation.
(a) If the judge determines sufficient evidence exists for the jury to consider the issue of the defendant's mental retardation, the case will proceed according to the procedures in paragraphs (B)(2)—(6).
(b) If the judge determines that there is not sufficient evidence for the jury to consider the issue of the defendant's mental retardation, the case will proceed as any other capital case.
(2) After the presentation of evidence, each party shall be entitled to present one closing argument addressing all sentencing issues, including the defendant's alleged mental retardation and arguments for or against a sentence of death. The defendant's argument shall be made last.
(3) Upon completion of argument, the judge shall instruct the jury solely upon the issue of the defendant's mental retardation and shall submit a special issue to the jury as to whether the defendant is mentally retarded.
(4) The question of the defendant's mental retardation shall be considered and answered by the jury prior to the consideration of any other sentencing issue and the determination of sentence.
(5) If the jury determines the defendant to be mentally retarded, the judge shall sentence the defendant to life imprisonment.
(6) If the jury does not find the defendant mentally retarded, the judge shall instruct the jury on the mitigating and aggravating circumstances and the jury shall deliberate on whether or not to impose the death penalty.
(C) In cases in which the defendant has asserted his or her mental retardation as provided in paragraph (A), and the defendant waives a sentencing proceeding before a jury and the trial judge determines the penalty, the following procedures shall apply:
(1) After the presentation of evidence, each party shall be entitled to present one closing argument addressing all sentencing issues, including the defendant's alleged mental retardation and arguments for or against a sentence of death. The defendant's argument shall be made last.
(2) The trial judge shall consider and answer the question of the defendant's mental retardation prior to the consideration of any other sentencing issue and the determination of sentence.
(3) If the trial judge determines the defendant to be mentally retarded, the trial judge shall sentence the defendant to life imprisonment.
(4) If the trial judge does not find the defendant to be mentally retarded, the trial judge will evaluate the mitigating and aggravating circumstances and determine whether or not to impose a sentence of death.
Comment In Commonwealth v. Sanchez, 614 Pa. 1, 36 A.3d 24 (Pa. 2011), the Pennsylvania Supreme Court held that, pursuant to Atkins v. Virginia, 536 U.S. 304 (2002), a determination that a defendant is precluded from receiving the death penalty by reason of mental retardation is to be made as the first issue in sentencing. This rule provides the procedures for that determination whether made by a jury or a judge when the issue has not been decided pretrial pursuant to Rule 843.
Paragraph (B) addresses sentencing proceedings before a jury. The rule contemplates that a single capital sentencing hearing will be held in such cases but the jury's deliberations will be conducted sequentially with the defendant's mental retardation decided first. If the jury finds the defendant not mentally retarded, the judge will instruct the jury on the issues related to the impos- ition of a sentence of death, including the mitigating and aggravating circumstances, after which the jury will deliberate on the sentence.
Paragraph (C) addresses sentencing proceedings before a judge. See Rule 809 for the form of the trial judge sentencing verdict slip when the defendant has waived a jury for the sentencing proceeding.
Except as otherwise provided in Part B of this Chapter, sentencing shall proceed as provided in Chapter 7.
Official Note: New Rule 844 adopted July 31, 2013, effective October 1, 2013.
Committee Explanatory Reports:
Final Report explaining the July 31, 2013 adoption of the new rule published with the Court's Order at 43 Pa.B. 4722 (August 17, 2013).
Rule 845. Form for Sentencing Verdict Slip in Cases in which the Defendant's Mental Retardation is Asserted.
IN THE COURT OF COMMON PLEAS OF ______ COUNTY, PENNSYLVANIA
CRIMINAL
COMMONWEALTH OF PENNSYLVANIA : vs. : NO. ______ :
FIRST DEGREE MURDER
SENTENCING VERDICT SLIP
FINDINGS REGARDING MENTAL RETARDATION INSTRUCTIONS:
Indicate whether you unanimously agree that the defendant has proven that he or she is mentally retarded.
Upon completion of deliberations on the question of the defendant's mental retardation, return to the courtroom for further instructions from the judge.
FINDINGS:
_____ We, the jury, unanimously find that the defendant has proven by a preponderance of the evidence that the defendant is mentally retarded.
_____ We, the jury, unanimously find that the defendant has not proven by a preponderance of the evidence that the defendant is mentally retarded.
_____ We, the jury, cannot agree unanimously that the defendant is mentally retarded.
______ DATE ______ JURY FOREPERSON
Comment The verdict slip form was created in 2013 to provide for those cases in which the question of a defendant's mental retardation that would preclude imposition of the death penalty is determined by the jury. See Atkins v. Virginia, 536 U.S. 304 (2002) and Commonwealth v. Sanchez, 614 Pa. 1, 36 A.3d 24 (2011). See also Rule 844. For optional procedures for a pretrial determination of the defendant's mental retardation, see Rule 843.
The judge should caution the jury that the verdict slip is to be used to record the findings as to mental retardation and that the slip should be completed only after their deliberations are concluded.
Official Note: New Rule 845 adopted July 31, 2013, effective October 1, 2013.
Committee Explanatory Reports:
Final Report explaining the July 31, 2013 adoption of the new rule providing the jury verdict slip form in cases involving a determination of mental retardation precluding imposition of the death penalty published with the Court's Order at 43 Pa.B. 4722 (August 17, 2013).
FINAL REPORT1
Proposed New Pa.Rs.Crim.P. 840—845
Proposed Amendments to Pa.Rs.Crim.P. 568, 800, 807, and 809
Proposed Revision of the Comment to
Pa.R.Crim.P. 808
Procedures for Seeking to Preclude Imposition of a Sentence of Death by Reason of Defendant's Mental Retardation On July 31, 2013, effective October 1, 2013, upon the recommendation of the Criminal Procedural Rules Committee, the Court adopted new Rules 840—845, amendments to Rules 568, 800, 807, and 809, and revision to the Comment to Rule 808 to provide procedures for asserting a claim of mental retardation that would preclude imposition of the death penalty.
Pursuant to directions from the Court, the Committee undertook the development of notice procedures for seeking to preclude the imposition of a sentence of death by reason of the defendant's mental retardation. As described more fully below, the Committee concluded that the bench and bar would benefit from having a more detailed procedural framework for asserting these claims. Therefore, the amendments address, in addition to the notice requirements, procedures for examination of the defendant, for disclosure of information, for conducting the optional pre-trial determination, for conducting the sentencing hearing in cases in which the issue is determined by the jury as well as a model jury slip.
Background
The question of the availability of the death penalty for mentally retarded individuals convicted of a capital offense was definitively decided by the U.S. Supreme Court in Atkins v. Virginia, 536 U.S. 304 (2002). In Atkins, the United States Supreme Court found that the execution of the mentally retarded is ''cruel and unusual punishment'' within the meaning of the Eighth Amendment's prohibition. In this decision, however, the U.S. Supreme Court did not adopt a definition of mental retardation or a prescribed method of how the issue should be determined. Instead, the Court left those tasks to the individual states to develop, specifically noting that states are ''left the task of developing appropriate ways to enforce the constitutional restriction upon execution of sentences.'' Id. at 317. The concept of individual state action on Atkins issues was reaffirmed in the case of Schriro v. Smith, 546 U.S. 6 (2005), that held that the states must develop their own legal definition of mental retardation. There is currently no statute that provides for an Atkins determination in Pennsylvania.2
In the absence of action by the Legislature, the Pennsylvania Supreme Court addressed most of the substantive questions regarding adjudication of Atkins claims in Commonwealth v. Sanchez, 36 A.3d 24 (Pa. 2011). Sanchez provides that the decision regarding this issue will be made by the jury as the first issue to be determined at sentencing, with the requirement that the finding of mental retardation for death penalty preclusion must be unanimous. However, the parties may agree to have the issue decided by the judge pre-trial. The burden of proof is on the proponent of the Atkins claim, usually the defendant, to prove mental retardation by a preponderance of the evidence.
Development of the Rule Changes
As directed by the Court, the Committee's examination initially focused on the question of the timing for raising this issue. The Committee considered a time limit similar to that used for the Rule 568 (Notice of Defense of Insanity or Mental Infirmity; Notice of Expert Evidence of a Mental Condition)—the motion to be filed no later than the time required for filing an omnibus pretrial motion, that is 30 days after arraignment. After further discussion, the Committee concluded that the time limit should not be tied to the omnibus pretrial motions rules but should be based on the arraignment date. This would be consistent with the requirements for the notice of aggravating circumstances in Rule 802. The members settled on the time to be a period of ninety days after arraignment, concluding that this is reasonable given the amount of information that must be gathered in order to present a good faith notice of mental retardation.
In addition to determining the timing for providing the notice, the Committee considered other procedures related to notice that should be addressed. These procedures include the provision for an extension of this time limitation for cause shown, and the provision for encouragement of the early involvement of the trial judge, soon after the notice was filed, in order to provide appropriate supervision of the discovery and examination process. The Committee agreed that the new notice procedures should provide for a response time of 30 days. This would be comparable to the procedures for the notice of insanity defense that served as a model for these notice procedures.
In further discussions, the Committee agreed that procedures comparable to the procedures in Rule 568 (Notice of Defense of Insanity or Mental Infirmity; Notice of Expert Evidence of a Mental Condition) should be added to provide a continuing duty to disclose and reciprocal notice. Lastly, the Committee also considered whether the new procedures should provide for the Commonwealth to obtain an examination of the defendant by a mental health expert similar to the procedures in Rule 569.
Because of the additional elements, particularly the disclosure and examination provisions, the Committee realized that the proposal was extending beyond notice procedures. The Committee determined that an expanded proposal, setting forth as many of the procedures for making an Atkins/Sanchez determination as possible, would be helpful to the bench and bar and agreed to examine procedures for how this determination is to be made, either by the jury or, upon agreement of the parties, as a pretrial determination by the trial judge.
Rule Changes
Originally, the Committee considered placing these procedures in Rule 802. Given the increased scope of the proposal, placement in a single rule would make that rule very unwieldy. The Committee concluded that the best structure for these procedures would be as a series of separate rules grouped in a new subchapter B in Chapter 8.
Therefore, new subchapter B includes new Rules 840 (Scope), 841 (Notice of Mental Retardation Precluding Imposition of the Death Penalty), 842 (Examination of Defendant by Mental Health Expert), 843 (Optional Pre-trial Hearing), 844 (Sentencing Procedures in Cases in which the Defendant's Mental Retardation is Asserted), and 845 (Form for Sentencing Verdict Slip in Cases in which the Defendant's Mental Retardation is Asserted).
New Rule 840 establishes that the rules in Part B provide the procedure for determining the defendant's ineligibility to be executed by reason of mental retardation. The Comment to Rule 840 includes citations to Atkins and Sanchez.
New Rule 841 provides for the timing of the filing of the notices. The rule also contains a reciprocal notice provision as well as a continuing duty to disclose. The disclosure requirements in Rule 841 are based on those for the competency to stand trial determination procedures found in Rule 568.
Additionally, Rule 841 contains in paragraph (B) provisions for the filing of the separate notice of expert evidence provision. As this proposal is modeled on the notice of insanity defense procedures, the Committee decided to retain this separate notice of expert evidence to keep the examination procedures for mental retardation similar to those for insanity.
Paragraph (E) of Rule 841 requires the clerk of courts immediately to send a copy of the notice to the trial judge to ensure the judge's supervision of the discovery and examination process at an early stage.
The notices filed under this rule are considered ''motions.'' To make this clear, the Comment contains a cross-reference to Rules 575 and 576 for motion procedures and explains that the term ''notices'' as used in the rule fall within the definition of ''motion'' in Rule 575.
Rule 842 provides the procedures by which the Commonwealth may obtain an examination of the defendant by a mental health expert. These procedures are almost identical to those found in Rule 569 with the only differences being changes necessary to conform to the mental retardation procedures.
New Rule 843 provides the procedures for the optional pre-trial hearing for the determination of the issue but only if all the parties agree, as provided in Sanchez. If the parties agree, the judge shall hear the issue as provided in this rule. Rule 843 also requires that, within 30 days of the completion of the evidentiary hearing, the judge enter an order finding the defendant either is or is not competent to be executed due to mental retardation. Paragraph (D) requires that the judge advise the defendant that, by agreeing to have this issue decided pretrial, the defendant would not be able to argue for capital punishment preclusion with a jury but only may introduce mental retardation evidence for purposes of mitigation.
The Committee conducted a lengthy examination of the manner in which a sentencing hearing would proceed when the issue of the defendant's mental retardation has not been decided pretrial pursuant to Rule 843. This procedure is detailed in Rule 844. First, after the guilt determination, a single capital sentencing hearing is held in which all sentencing evidence is to be presented, including evidence of the defendant's mental retardation. Under Rule 844(B), the trial judge makes an initial determination that the evidence of the defendant's mental retardation that has been presented is sufficient to raise a question for the jury to determine. If the trial judge determines that sufficient evidence of the defendant's mental retardation had not been presented, the case proceeds as in any other capital case. If the trial judge determines that sufficient evidence has been presented, each party would be permitted to make a single argument encompassing all sentencing issues. At the conclusion of the arguments, the judge will instruct the jury on the mental retardation issue only. The jury then will deliberate on that single issue. If the jury finds the defendant not mentally retarded, the trial judge will instruct them on the mitigating and aggravating circumstances and the jury will deliberate on that phase of sentencing.
Paragraph (C) provides the procedures to be followed when the defendant has waived sentencing before a jury and is sentenced before the trial judge. As with a jury sentencing proceeding, one hearing would be held and each party would be permitted one argument addressing all sentencing issues. The judge would then consider the question of the defendant's mental retardation prior to the consideration of any other sentencing issue.
In cases in which the jury is asked to make a determination as to the defendant's mental retardation, a new separate jury verdict slip, contained in new Rule 845, would be used to record the jury's determinations regarding mental retardation. Since this is a distinct determination, the slip in Rule 845 poses only one question, whether the jury unanimously finds the defendant was mentally retarded at the time of the murder. If the jury finds the defendant mentally retarded, the jury would not need to consider aggravating or mitigating factors. If the jury does not find the defendant mentally retarded or if the jury cannot unanimously agree that the defendant was mentally retarded, the jury would proceed, after further instruction by the trial judge, to the capital determination guided by the jury slip in Rule 807.
In cases in which the defendant has waived sentencing before a jury and has not sought a pretrial determination of mental retardation as contemplated in Rule 844(C), the judge sentencing verdict slip in Rule 809 has been modified to incorporate this possibility and correlative changes also have been made to Rule 807(B).
Finally, correlative changes to Rule 800 indicating the addition of new Part B to Chapter 8 as well as to Rule 568 to indicate that procedures for Atkins/Sanchez determinations are in Chapter 8 Part B have been added.
[Pa.B. Doc. No. 13-1512. Filed for public inspection August 16, 2013, 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 ''Mental retardation'' was defined in Pennsylvania in Commonwealth v. Miller, 585 Pa. 144, 888 A.2d (2005) which held that a defendant may establish mental retardation as defined by either the American Association of Mental Retardation or Diagnostic and Statistical Manual Disorders, 4th Ed. (DMS-IV)
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