THE COURTS

PART I.  GENERAL

[234 PA. CODE CH. 1100]

Order Amending Rule 1114; No. 204; Doc. No. 2

[26 Pa.B. 438]

Order

Per Curiam:

   Now, this 16th day of January, 1996, upon the recommendation of the Criminal Procedural Rules Committee, the proposal having been published in the Pennsylvania Bulletin (24 Pa.B. 1479 (March 19, 1994)) and in the Atlantic Reporter (Second Series Advance Sheets Vol. 637, No. 1) before adoption, 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 Rule 1114 is hereby amended in the following form.

   This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective July 1, 1996.

   The Criminal Procedural Rules Committee has prepared a Final Report explaining the changes which are the subject to the Court's Order. The Final Report follows the Court's Order.

Annex A

TITLE 234.  RULES OF CRIMINAL PROCEDURE

PART I.  GENERAL

CHAPTER 1100.  TRIAL

Rule 1114.  Material permitted in possession of the jury.

   [Upon retiring for deliberations, the jury shall not be permitted to have a transcript of any trial testimony, nor a copy of any written confession by the defendant, nor a copy of the information or indictment. Otherwise, upon retiring, the jury may take with it such exhibits as the trial judge deems proper.]

   1.  Upon retiring, the jury may take with it such exhibits as the trial judge deems proper, except as provided in paragraph 2.

   2.  During deliberations, the jury shall not be permitted to have a transcript of any trial testimony, nor a copy of any written or otherwise recorded confession by the defendant, nor a copy of the information.

   Official Note: Adopted January 24, 1968, effective August 1, 1968; amended, and second paragraph of Comment and the words ''or information'' added June 28, 1974, effective September 1, 1974; Comment revised August 12, 1993, effective September 1, 1993; amended January 16, 1996, effective July 1, 1996.

Comment

   [This rule substantially changed the former law in many Pennsylvania counties by prohibiting] This rule prohibits the jury from receiving a copy of the indictment or information during its deliberations. The rule also prohibits the jury from taking into the jury room any written or otherwise recorded confession of the defendant. In Commonwealth v. Pitts, [450 Pa. 359, 363 n.1,] 301 A.2d 646, 650 n.1 (Pa. 1973), the Court noted that ''it would be better procedure not to allow exhibits into the jury room which would require expert interpretation.'' See Commonwealth v. Oleynik, 568 A.2d 1238 (Pa. 1990), in which the Supreme Court held that it was improper to permit a jury to take written jury instructions with them for use during deliberations.

   Although most references to indictments and indicting grand juries were deleted from these rules in 1993 because the indicting grand jury was abolished in all counties, see PA. CONST. art. I, § 10 and 42 Pa.C.S. § 8931(b), the reference was retained in this rule because there may be some cases still pending that were instituted prior to the abolition of the indicting grand jury.

   The amendment adding ''or otherwise recorded'' is not intended to enlarge or modify what constitutes a confession under this rule. Rather, the amendment is only intended to recognize that a confession can be recorded in a variety of ways. See Commonwealth v. Foster, 624 A.2d 144 (Pa. Super. 1993).

Committee Explanatory Reports:

   Report explaining the August 12, 1993 Comment revision published at 22 Pa.B. 3826 (July 25, 1992).

   Final Report explaining the January 16, 1996 amendments published with the Court's Order at 26 Pa.B. 439 (February 3, 1996).

FINAL REPORT

Amendments to Rule 1114
(Materials Permitted in Possession of Jury)

Written or Otherwise Recorded Confessions

I.  Introduction

   On January 16, 1996, upon the recommendation of the Criminal Procedural Rules Committee, the Supreme Court of Pennsylvania adopted amendments to Rule of Criminal Procedure 1114 (Material Permitted in Possession of the Jury) to clarify the rule's exception for confessions in light of Commonwealth v. Foster, 624 A.2d 144 (Pa. Super. 1993). This Final Report highlights the Committee's considerations in formulating its recommendation.¹¹

II.  Discussion

   Under Rule 1114, a jury is not permitted to have a copy of a defendant's written confession. In Commonwealth v. Foster, 624 A.2d 144 (Pa. Super. 1993), the Superior Court declined to construe Rule 1114 as imposing a like proscription for videotaped confessions, but raised the question of whether Rule 1114 should be amended to encompass all mediums by which a criminal defendant's confession could be recorded.

   Prompted by the Superior Court's suggestion in Foster, the Committee reviewed the history of Rule 1114. In 1974, at the Court's request, the Committee added the ''written confession'' exception to Rule 1114, although at the time, the Committee believed that there should be no exception and that the entire matter should be left to the judge's discretion. As we reexamined Rule 1114, there was some sentiment that the Committee's 1974 position was correct and that the rule should be completely discretionary. Ultimately, however, we decided that the exception should remain.

   Because the Committee agreed with the suggestion in Foster that the ''confession'' exception should encompass all mediums by which a defendant's confession can be recorded, we reviewed examples of Pennsylvania statutory and rule language distinguishing audio and video recordings from a police officer's written ''record'' or report of a defendant's statement in order to determine how best to phrase a rule amendment. We rejected some terminology, such as ''electronic recordings,'' because technological developments would soon render it obsolete. Other terminology, such as that found in the Wiretap Act, see 18 Pa.C.S. § 5714 (Recording of Intercepted Communications) and in the statutes governing videotaped depositions and closed-circuit television, see 42 Pa.C.S. §§ 5984, 5985, and 5985.1, was too narrow in scope. As a result of this review, the Committee concluded that the amendment should be broadly drafted to insure that it would encompass not only the current means for recording confessions, but also future technological developments.

   Finally, to make it clear that the amendment is not intended to change what constitutes a confession under Rule 1114, we added the following paragraph to the Comment:

   The amendment adding ''or otherwise recorded'' is not intended to enlarge or modify what constitutes a confession under this rule. Rather, the amendment is only intended to recognize that a confession can be recorded in a variety of ways. See Commonwealth v. Foster, 624 A.2d 144 (Pa. Super. 1993).

[Pa.B. Doc. No. 96-134. Filed for public inspection February 2, 1996, 9:00 a.m.]

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¹ 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 Committee's explanatory Reports.

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