Pennsylvania Bulletin

PA Bulletin, Doc. No. 99-2035

THE COURTS

Title 234--RULES OF CRIMINAL PROCEDURE

PART I.  GENERAL

[234 PA. CODE CH. 1100]

Order Adopting Amendments to Rule 1114; No. 257; Criminal Procedural Rules Doc. No. 2

[29 Pa.B. 6102]

   The Criminal Procedural Rules Committee has prepared a Final Report explaining the November 18, 1999 amendments to Rule 1114 (Material Permitted in Possession of the Jury). These amendments make it clear that the trial court is prohibited from providing written jury instructions to the jury for use during deliberations. The Final Report follows the Court's Order.

Order

Per Curiam:

   Now, this 18th day of November, 1999, upon the recommendation of the Criminal Procedural Rules Committee; this proposal having been submitted without publication pursuant to Pa.R.J.A. 103(a)(3), 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 Pa.R.Crim.P. 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 January 1, 2000.

Annex A

TITLE 234.  RULES OF CRIMINAL PROCEDURE

PART I.  GENERAL

CHAPTER 1100.  TRIAL

Rule 1114.  Material permitted in possession of the jury.

   [1.] (A)  Upon retiring, the jury may take with it such exhibits as the trial judge deems proper, except as provided in paragraph [2] (B).

   [2.] (B)  During deliberations, the jury shall not be permitted to have:

   (1)  a transcript of any trial testimony [, nor];

   (2)  a copy of any written or otherwise recorded confession by the defendant [, nor];

   (3)  a copy of the information [.]; or

   (4)  written jury instructions.

   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; amended November 18, 1999, effective January 1, 2000.

Comment

   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, 301 A.2d 646, 650 n. 1 (Pa. 1973), the Court noted that ''it would be a 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.]

   The 1999 amendment to paragraph (B) makes it clear that the trial court is prohibited from sending written jury instructions with a jury for use during deliberations. See Commonwealth v. Karaffa, 709 A.2d 887 (Pa. 1998), in which the Court held it was reversible error to submit written jury instructions to the jury.

   The 1996 amendment adding ''or otherwise recorded'' in paragraph (B)(2) 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).

   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 explaining the changes to paragraph (B) and the Comment prohibiting written jury instructions going to the jury published with the Court's Order at 29 Pa.B. 6102 (December 4, 1999).

FINAL REPORT¹

Amendments to Pa.R.Crim.P. 1114

Material Not Permitted in Possession
of the Jury During Deliberations

   On November 18, 1999, effective January 1, 2000, upon the recommendation of the Criminal Procedural Rules Committee, the Court amended Rule 1114 (Material Permitted in Possession of the Jury). The amendments make it clear that the trial court is prohibited from providing written jury instructions to the jury for use during deliberations.

   Following the Court's decision in Commonwealth v. Karaffa, 709 A.2d 887, 888 (Pa. 1998), making it clear that ''the submission of written jury instructions constitutes reversible error in this Commonwealth,'' the Committee reviewed Rule 1114 and jury instruction procedures in other jurisdictions. From our review, we concluded that, notwithstanding the Court's 1990 decision in Commonwealth v. Oleynik, 568 A.2d 1238 (Pa. 1990), and the subsequent addition of a citation to Oleynik in the Rule 1114 Comment, there continues to be confusion concerning the prohibition on submitting written jury instructions to the jury for use during deliberations. In view of this, the Committee agreed that the text of Rule 1114 should be amended to reflect the current state of the law in Pennsylvania and more clearly advise members of the bench and bar with regard to jury instructions. Accordingly, new paragraph (B)(4) adds written jury instructions to the list of materials the jury is not permitted to have during deliberations. In addition, the Comment has been revised by deleting the citation to Oleynik and adding a citation to Karaffa and has been reorganized.

[Pa.B. Doc. No. 99-2035. Filed for public inspection December 3, 1999, 9:00 a.m.]

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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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