THE COURTS

Title 234—RULES OF CRIMINAL PROCEDURE

[234 PA. CODE CH. 8]

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

[44 Pa.B. 8011]
[Saturday, December 27, 2014]

 The Criminal Procedural Rules Committee is considering recommending that the Supreme Court of Pennsylvania amend Rule 801 (Qualifications for Defense Counsel in Capital Cases) to correct the description of the prosecutor and to clarify that experience as a prosecutor should be considered to satisfy the experiential requirements of the rule. 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 precede 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,

Jeffrey M. Wasileski, 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, February 27, 2015.

By the Criminal Procedural Rules Committee

PAUL M. YATRON, 
Chair

Annex A

TITLE 234. RULES OF CRIMINAL PROCEDURE

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

PART A. Guilt and Penalty Determination Procedures

Rule 801. Qualifications for Defense Counsel in Capital Cases.

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

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Comment

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

 The educational and experience requirements of the rule may not be waived by the trial or appellate court. A court may allow representation by an out-of-state attorney pro hac vice, if satisfied the attorney has equivalent experience and educational qualifications, and is a member in good standing of the Bar of the attorney's home jurisdiction. See Pa.B.A.R. 301.

 For purposes of the requirements of paragraph (1), experience in the role of either prosecutor or defense counsel should be considered.

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

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 Official Note: Adopted June 4, 2004, effective November 1, 2004; amended April 13, 2007, effective immediately; amended October 1, 2012, effective November 1, 2012; amended December 10, 2013, effective February 10, 2014; amended      , 2014, effective      , 2014.

Committee Explanatory Reports:

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 Report explaining the proposed amendments correcting a reference to the prosecutor and clarifying the experiential requirements of the rule published for comment at 44 Pa.B. 8011 (December 27, 2014).

REPORT

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

Qualifications of Capital Case Counsel; Prosecutorial Experience

 Rule 801 was adopted by the Court on June 4, 2004.¹ Rule 801 provides standards for experience and continuing legal education required of criminal defense counsel representing defendants in proceedings involving possible capital punishment, including pretrial, trial, post-conviction, and appellate proceedings. Before an attorney may represent a defendant in a capital case, either as retained or appointed counsel, he or she must meet the following standards:

 • be a member of the Bar in good standing;

 • have at least five years of experience in criminal litigation;

 • serve as lead or co-counsel in a minimum of 8 significant cases which were tried to verdict before a jury. Representation in appellate proceedings requires priorappellate or post-conviction representation in a minimum of 8 significant cases. A ''significant case'' for purposes of this rule shall be a murder, including manslaughter and vehicular homicide, or a felony of the first or second degree.

 • Within the preceding three years, undertake a minimum of 18 hours of training relevant to representation in capital cases, as approved by the Pennsylvania Continuing Legal Education Board. Rule 801(2)(b) provides an extensive list of areas of training that would satisfy this requirement.

 The rule also provides for ''second chair'' counsel and pro hac vice representation.

 The Committee has been presented with the question of whether experience acquired as a prosecutor could be counted toward the requirements of Rule 801(1). Although this is not explicitly stated in the rule, it seems logical that the experience acquired in significant cases be counted regardless upon which side a counsel served. Even though the function of a prosecutor is obviously different, many of the trial and practice skills are complementary. Such an interpretation would provide a reasonable inclusiveness in an already limited pool of counsel. Furthermore, the Committee understands that this is the common practice in most jurisdictions. Therefore, the Comment to Rule 801 would be revised to indicate that such experience should be considered in determining whether counsel meets the qualifications under the rule.

 Additionally, there was a suggestion to broaden the language of the initial paragraph of the rule regarding the filing of the notice of aggravating circumstances from the term ''district attorney'' to ''attorney for the Commonwealth.'' There are times when the Office of the Attorney General prosecutes a murder as a capital offense, either arising out of their primary jurisdiction or after a case has been referred to them by a district attorney. Therefore, the terminology in the rule would be changed.

[Pa.B. Doc. No. 14-2673. Filed for public inspection December 26, 2014, 9:00 a.m.]

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¹ Rule 801 was not developed by the Committee but rather was the product of a special ad hoc group formed by the Supreme Court.

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