THE COURTS
Title 234--RULES OF CRIMINAL PROCEDURE
PART I. GENERAL
[234 PA. CODE CH. 1100]
Order Amending Rules 1101, 1102 and 1103; No. 240, Doc. No. 2
[29 Pa.B. 2289] The Criminal Procedural Rules Committee has prepared a Final Report explaining the April 16, 1999 amendments to Rules of Criminal Procedure 1101 (Waiver of Jury Trial), 1102 (Procedure When Jury Trial is Waived), and 1103 (Agreement to be Tried by Fewer Than Twelve Jurors) that conform the rules to the 1998 amendment to article I, § 6 of the Pennsylvania Constitution that provides, ''In criminal cases, the Commonwealth shall have the same right to trial by jury as does the accused.'' The Final Report follows the Court's Order.
Order Per Curiam:
Now, this 16th day of April 1999, upon the recommendation of the Criminal Procedural Rules Committee; this Recommendation having been submitted without publication pursuant to Pa.R.J.A. 103(a)(3), with a Final Report to be published with this Order;
It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that Rules 1101, 1102, and 1103 are amended all in the following form.
This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective July 1, 1999.
Annex A
TITLE 234. RULES OF CRIMINAL
PROCEDURE
PART I. GENERAL
CHAPTER 1100. TRIAL Rule 1101. Waiver of Jury Trial.
In all cases, the defendant and the attorney for the Commonwealth may waive a jury trial with approval by a judge of the court in which the case is pending, and elect to [be tried by a] have the judge try the case without a jury. The judge shall ascertain from the defendant whether this is a knowing and intelligent waiver, and such colloquy shall appear on the record. The waiver shall be in writing, made a part of the record, and signed by the defendant, the attorney for the Commonwealth, the judge, and the defendant's attorney as a witness.
Official Note: Adopted January 24, 1968, effective August 1, 1968; amended March 29, 1973, effective 30 days hence; amended November 9, 1984, effective January 2, 1985[.]; amended April 16, 1999, effective July 1, 1999.
Comment [Heretofore, a defendant charged with murder was not permitted to waive a jury trial; however this Rule eliminates that limitation.]
The 1973 amendment ended the proscription, which had formerly appeared in this [Rule] rule, against waiver of jury trials in capital cases[--that is, those in which the Commonwealth refuses to certify that it is not seeking the death penalty]. In doing so, the Court has departed from the language expressed, in the absence of specific [Rules] rules to the contrary, in Commonwealth v. Petrillo, [340 Pa. 33, 43,] 16 A.2d 50, 56 (Pa. 1949) and Commonwealth v. Kirkland, [413 Pa. 48, 53,] 195 A.2d 338, 340 (Pa. 1963). [The 1973 modification by the Court also deleted the requirement of the approval of the attorney for the Commonwealth.]
The 1999 amendment to this rule embodies the 1998 amendment to article I, § 6 of the Pennsylvania Constitution that provides that ''the Commonwealth shall have the same right to trial by jury as does the accused.''
It is intended that when deciding to permit a non-jury trial, the judge should take into account all relevant considerations. When the judge disapproves waiver of jury trial, the judge should state the reasons for its decision on the record. See Commonwealth v. Boyd, 467 A.2d 855 (Pa. Super. 1983) and Commonwealth v. Giaccio, 457 A.2d 875 (Pa. Super. 1983).
While this rule continues to require a written waiver of jury trial, the form of the written waiver was deleted in 1985 because it is no longer necessary to control the specific form of written waiver by rule.
When there are co-defendants, waiver of a jury trial with respect to one or more defendants does not preclude a jury trial for other defendants.
Committee Explanatory Reports:
Final Report explaining the April 16, 1999 amendments concerning the 1998 Constitutional amendment published with the Court's Order at 29 Pa.B. 2290 (May 1, 1999).
Rule 1102. Procedure when jury trial is waived.
[(a)] (A) When [a defendant waives] a jury trial is waived, the trial judge shall determine all questions of law and fact and render a verdict which shall have the same force and effect as a verdict of a jury.
[(b)] (B) At any time [prior to] before the commencement of trial, [the defendant may withdraw his] a waiver of a jury trial or the judge's approval thereof may be withdrawn. [Thereafter, at any time prior to verdict the trial judge on his own motion may order the withdrawal of such waiver or permit the defendant, upon motion, to withdraw his waiver.
(c) When a trial judge on his own motion orders the withdrawal of a waiver, it shall be without prejudice to the defendant's right once again to waive a jury trial, but if a waiver is withdrawn on the motion of a defendant, no further waiver shall be permitted.]
Official Note: Adopted January 24, 1968, effective August 1, 1968[.]; amended April 16, 1999, effective July 1, 1999.
Comment [The Act of June 11, 1935, P. L. 319, No. 141, § 2, 19 P. S. § 787 is suspended by this rule. See Rule 1124.]
The 1999 amendment conforms this rule to the 1998 amendment to article I, § 6 of the Pennsylvania Constitution providing that ''the Commonwealth shall have the same right to trial by jury as does the accused.''
Paragraph (B) was amended in 1999 to make it clear that the defendant, the attorney for the Commonwealth, or the judge may unilaterally withdraw the jury trial waiver or the approval at any time before the commencement of trial. After commencement of trial, Rule 1118 governs.
Paragraph (c) was deleted in 1999 to permit the defendant and the attorney for the Commonwealth to waive a jury trial with the court's approval, under Rule 1101, even after the withdrawal of a previous jury trial waiver.
When there are co-defendants, withdrawal of a waiver, or withdrawal of the judge's approval, with respect to one or more defendants does not preclude a waiver and non-jury trial for other defendants.
Committee Explanatory Reports:
Final Report explaining the April 16, 1999 amendments concerning the 1998 Constitutional amendment published with the Court's Order at 29 Pa.B. 2290 (May 1, 1999).
Rule 1103. [Consent] Agreement to be tried by [less] fewer than twelve jurors.
In all cases, at any time after a jury of twelve is initially sworn and before verdict, the [defendant at any time before verdict] defendant and the attorney for the Commonwealth, with approval of the judge, may agree [, with the consent of his attorney, and approval by a judge of the court in which the case is pending,] to [be tried by] a jury of [less] fewer than twelve but not [less] fewer than six. Such [consent] agreement shall be made a part of the record. The verdict in such a case shall have the same force and effect as a verdict by a jury of twelve.
Official Note: Adopted January 24, 1968, effective August 1, 1968; amended September 22, 1976, effective November 1, 1976[.]; amended April 16, 1999, effective July 1, 1999.
Comment [The 1976 amendment had the effect of making this Rule applicable to capital cases. Formerly a defendant in a capital case could not consent to be tried by fewer than twelve (12) jurors.
The procedure under this Rule is intended to apply only after a jury of twelve is initially sworn, and before a verdict is rendered.]
The 1999 amendment conforms this rule to the 1998 amendment to article I, § 6 of the Pennsylvania Constitution providing that ''the Commonwealth shall have the same right to trial by jury as does the accused.''
Committee Explanatory Reports:
Final Report explaining the April 16, 1999 amendments concerning the 1998 Constitutional amendment published with the Court's Order at 29 Pa.B. 2290 (May 1, 1999).
FINAL REPORT1
Amendments to Pa.Rs.Crim.P. 1101, 1102 and 1103;
Commonwealth Right to Jury Trial On April 16, 1999, upon the recommendation of the Criminal Procedural Rules Committee, the Supreme Court adopted changes to Pa.Rs.Crim.P. 1101 (Waiver of Jury Trial), 1102 (Procedure When Jury Trial is Waived), and 1103 (Agreement to be Tried by Fewer Than Twelve Jurors), effective July 1, 1999. These changes conform the rules to the November 3, 1998 amendment to article I, § 6 of the Pennsylvania Constitution that provides, ''In criminal cases, the Commonwealth shall have the same right to trial by jury as does the accused.''
Introduction
Before 1973, Rule 1101 provided that a defendant may waive a jury trial with the consent of the attorney for the Commonwealth. In 1973, the Court amended Rule 1101 by deleting the consent requirement. Since then, the Criminal Rules have not provided the Commonwealth with a say in the decision to proceed non-jury. In view of the 1998 Constitutional amendment, however, the Committee undertook a review of Rules 1101, 1102, and 1103, and agreed that some changes were necessary to accommodate this Constitutional change. The amended rules provide that: 1) a jury trial may be waived if both the defendant and Commonwealth agree; 2) after a jury trial waiver is approved by the court, the defendant, the attorney for the Commonwealth, or the judge may require a jury trial by withdrawal of the waiver or its approval; and 3) the defendant may be tried by a jury of fewer than twelve if the defendant and the attorney for the Commonwealth agree.
Discussion of Rule Changes
1. Rule 1101 (Waiver of Jury Trial)
Rule 1101 provides the procedural requirements for waiving a jury trial. Without any changes clarifying the 1998 amendment to article I, § 6 of the Pennsylvania Constitution, the Committee was concerned that Rule 1101 would be construed as abrogating the newly granted substantive jury trial rights of the Commonwealth because the rule provides a procedure by which a defendant may waive a jury trial but does not include comparable procedures for the Commonwealth.
The Committee first considered adding language to the rule that would require that the defendant may waive a jury with the consent of the Commonwealth, comparable to the pre-1973 version of Rule 1101. After discussion, we rejected this language because it could be perceived as providing the Commonwealth with a ''superior right to'' rather than the ''same right as'' the defendant, and it did not adequately provide procedures for the Commonwealth to waive a jury.
The Committee nest considered merely adding ''and attorney for the Commonwealth'' in the first line of the first sentence of Rule 1101 immediately after ''the defendant.'' Thus Rule 1101 would provide that the defendant and the attorney for the Commonwealth both have to agree to waive a jury trial. The Committee agreed that this change accomplishes what was intended by the Constitutional amendment and recommended it to the Court. The amended rule retains the provision for the judge's approval because it is the judge's responsibility to supervise the trial to insure the fair and orderly administration of justice. The last two sentences are retained, as they are in the present rule, with the addition of ''the attorney for the Commonwealth'' after ''the defendant'' in the last sentence. Accordingly, the rule requires the signature of both the defendant and the attorney for the Commonwealth on the written waiver.
The Rule 1101 Comment contains several correlative revisions. The first paragraph and the last sentence of the second paragraph have been deleted because they are historical references that are no longer necessary in view of the constitutional amendment. The Comment retains the explanation of the 1973 amendment concerning ending the proscription against waiver of jury trials in capital cases in order to prevent confusion about whether the proscription would continue.
The Comment language, ''that is, those in which the Commonwealth refuses to certify that it is not seeking the death penalty,'' in the first sentence of the second paragraph, has been deleted because the death penalty procedures have changed, and this is no longer a requirement.
Finally, three new paragraphs have been added to the Comment to:
1) explain why the rule is being amended;
2) make it clear that the judge should take all relevant considerations into account when deciding whether to approve a waiver, and that when the judge disapproves a waiver, the reasons for the disapproval should be stated on-the-record; and
3) avoid confusion concerning jury trial waiver when there are co-defendants and make it clear that when there are co-defendants, waiver of a jury trial by one defendant does not waive a jury trial for any other defendant(s).
2. Rule 1102 (Procedure when Jury Trial is Waived)
Rule 1102 provides the procedures for a non-jury trial and for withdrawing a waiver. Because present Rule 1102 is defendant specific, the rule changes conform to the Rule 1101 changes by deleting the references to the defendant, and referring only to the waiver. See paragraphs (A) and (B).
The Rule 1102(B) amendments make it clear that the attorney for the Commonwealth, in addition to the defendant, may withdraw the waiver, or the judge may withdraw the approval of the waiver, before the commencement of trial. The Committee reasoned that a trial without a jury can only occur when the defendant and the attorney for the Commonwealth both sign the waiver form indicating their consent to waive, and if either party withdraws consent, then the waiver becomes invalid.
In addition, the last sentence of paragraph (B) has been deleted from the rule because the withdrawal of a jury trial waiver, or the approval of the waiver, after the trial commences, would terminate the non-jury trial, resulting in a mistrial, and raise double jeopardy issues. Since Rule 1118 (Mistrials) adequately covers the issue of mistrials, the Comment has been revised to include a cross-reference to Rule 1118 for those situations in which a party seeks to withdraw waiver after the commencement of trial.
Paragraph (C) of Rule 1102 has been deleted to make it clear that a defendant may waive a jury trial after a previous withdrawal of a jury trial waiver. The rule, therefore, is silent concerning subsequent withdrawals of jury trial waivers. Although this change creates a potential for ''judge shopping'' and for ''waiving and withdrawing'' in a repeated pattern of abuse if subsequent withdrawals are permitted, these occurrences are rare because the waiver is possible only when a defendant, attorney for the Commonwealth, and judge agree to the waiver. In addition, there are circumstances in which, after a waiver is withdrawn, a second waiver is warranted, such as when a waiver is withdrawn but the subsequent jury trial ends in a mistrial, or the defendant is convicted, but a new trial is ordered. In either event, the defendant may want to proceed without a jury for the new trial or retrial. Furthermore, prohibiting waiver after the withdrawal of a waiver frustrates judicial economy by requiring a possibly lengthy jury trial when the defendant, attorney for the Commonwealth, and the judge agree that the case should be tried non-jury. In addition, the Rule 1102 Comment includes a revision further clarifying that a jury trial may be waived under Rule 1101, with the judge's approval, even after the withdrawal of a previous jury trial waiver.
The Comment also has been revised by deleting the first paragraph, which is no longer necessary in view of the constitutional amendment. Two paragraphs have been added to the Comment to make it clear that 1) the changes are the result of the amendment to the constitution, and 2) when there are co-defendants, the withdrawal of a waiver of a jury trial by a defendant does not preclude waiver of a jury trial by any other defendant(s).
3. Rule 1103 (Agreement to be Tried by Fewer than Twelve Jurors)
Rule 1103 provides that a defendant may be tried by a jury of fewer than twelve. The rule has been reorganized to clarify the purpose of the rule. The language ''the attorney for the Commonwealth'' has been included to conform to the constitutional provision giving the Commonwealth the ''same right to a jury trial'' as the defendant. Because of continued confusion about the timing requirements of this rule, Rule 1103 has been amended by moving into the body of the rule the Comment provision that the procedure under the rule is intended to apply after a jury is sworn and before verdict. Finally, the consent of defense counsel requirement has been deleted from the rule because the decision to agree to a jury of fewer than twelve belongs to the defendant and the attorney for the Commonwealth.
Two revisions have been made to the Rule 1103 Comment. The first paragraph has been deleted because it is an historical reference that is no longer necessary in view of the amendment to the constitution, and a new paragraph has been added to make it clear that the rule was changed as a result of the 1998 constitutional amendment.
[Pa.B. Doc. No. 99-697. Filed for public inspection April 30, 1999, 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.
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