THE COURTS
[234 PA. CODE CH. 5]
Notice of Alibi Defense and Defense of Insanity or Mental Infirmity
[31 Pa.B. 2554]
Introduction The Criminal Procedural Rules Committee is planning to recommend that the Supreme Court of Pennsylvania adopt new Pa.Rs.Crim.P. 568 (Notice of Alibi Defense) and 569 (Notice of Defense of Insanity or Mental Infirmity), and make conforming changes to Rule 573 (Pretrial Discovery and Inspection). These rule changes move the notice of the defenses of alibi, insanity, and mental infirmity from Rule 573 (Pretrial Discovery and Inspection) into separate rules, thereby making the notice of alibi and notice of insanity or mental infirmity procedures distinct from the discovery procedures. 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 Report 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 rule changes precedes the Report. Additions are shown in bold and are underlined; deletions are in bold and brackets.
We request that interested persons submit suggestions, comments, or objections concerning this proposal to the Committee through counsel, Anne T. Panfil, Chief Staff Counsel, Supreme Court of Pennsylvania, Criminal Procedural Rules Committee, P. O. Box 1325, Doylestown, PA 18901 or criminal.rules@supreme.court.state.pa.us, no later than Monday, June 18, 2001.
By the Criminal Procedural Rules Committee
JOSEPH P. CONTI,
Chair
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
CHAPTER 5. PRETRIAL PROCEDURE IN
COURT CASES
PART E. INFORMATION (Editor's Note: Rules 568 and 569 are new and are printed in regular type to enhance their readability.)
Rule 568. Notice of Alibi Defense.
(A) NOTICE BY DEFENDANT
A defendant who intends to offer the defense of alibi at trial shall file a notice specifying an intention to offer an alibi defense no later than the time required for filing the omnibus pretrial motion provided in Rule 579.
(1) The notice shall be signed by the attorney for the defendant, or the defendant if unrepresented. The notice shall be filed with the clerk of courts with proof of service upon the attorney for the Commonwealth.
(2) The notice shall contain specific information as to the place or places where the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses whom the defendant intends to call in support of the claim.
(B) FAILURE TO FILE NOTICE
(1) If the defendant fails to file and serve the notice of alibi as required by this rule, the court may exclude entirely any evidence offered by the defendant for the purpose of proving the defense, except testimony by the defendant, may grant a continuance to enable the Commonwealth to investigate such evidence, or may make such other order as the interests of justice require.
(2) If the defendant omits any witness from the notice of alibi, the court at trial may exclude the testimony of the omitted witness, may grant a continuance to enable the Commonwealth to investigate the witness, or may make such other order as the interests of justice require.
(C) RECIPROCAL NOTICE OF WITNESSES
Within 10 days after receipt of the defendant's notice of defense of alibi, or within such other time as allowed by the court upon cause shown, the attorney for the Commonwealth shall serve upon 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 alibi.
(D) FAILURE TO FILE RECIPROCAL NOTICE
(1) If the attorney for the Commonwealth fails to file and serve a list of its witnesses required by this rule, the court may exclude any evidence offered by the Commonwealth for the purpose of disproving the alibi defense, may grant a continuance to enable the defense to investigate such evidence, or may make such other order as the interests of justice require.
(2) If the attorney for the Commonwealth omits a witness from the list of its witnesses required by paragraph (C), the court at trial may exclude the testimony of the omitted witness, may grant a continuance to enable the defense to investigate the witness, or may make such other order as the interests of justice require.
(E) CONTINUING DUTY TO DISCLOSE
If prior to or during trial a party learns of an additional witness whose identity, if known, should have been included in the notice furnished under paragraphs (A) or (C), the party promptly shall notify the other party or the other party's attorney of the existence and identity of such additional witness.
(F) FAILURE TO CALL WITNESSES
No adverse inference may be drawn against the defendant, nor may any comment be made concerning the defendant's failure to call available alibi witnesses, when such witnesses have been prevented from testifying by reason of this rule, unless the defendant or the defendant's attorney shall attempt to explain such failure to the jury.
(G) IMPEACHMENT
A defendant may testify concerning an alibi notwithstanding that the defendant has not filed notice, but if the defendant has filed notice and testifies concerning his or her presence at the time of the offense at a place or time different from that specified in the notice, the defendant may be cross-examined concerning such notice.
Comment This rule, which is derived from paragraphs (C)(1)(a), (c)--(g), and (D) of Rule 573 (Pretrial Discovery and Inspection) and was made a separate rule in 2001, sets forth the notice procedures when a defendant intends to raise an alibi defense at trial.
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).
The notice-of-alibi provision is intended to comply with the requirement of Wardius v. Oregon, 412 U. S. 470 (1973), by the inclusion of reciprocal disclosure responsibilities placed upon the Commonwealth in paragraph (C). See also Commonwealth v. Contakos, 314 A.2d 259 (Pa. 1974).
Official Note: Adopted ______ , 2001, effective ______ , 2001.
Committee Explanatory Reports:
Report explaining the proposed new rule governing notice of alibi defense published at 31 Pa.B. 2557 (May 19, 2001).
Rule 569. Notice of Defense of Insanity or Mental Infirmity.
(A) NOTICE BY DEFENDANT
A defendant who intends to offer at trial the defense of insanity or mental infirmity shall file a notice of the intention to offer the defense of insanity or mental infirmity not later than the time required for filing an omnibus pretrial motion provided in Rule 579.
(1) The notice shall be signed by the attorney for the defendant, or the defendant if unrepresented. The notice shall be filed with the clerk of courts with proof of service upon the attorney for the Commonwealth.
(2) The notice shall contain specific available information as to the nature and extent of the alleged insanity or mental infirmity, the period of time that the defendant allegedly suffered from such insanity or mental infirmity, and the names and addresses of witnesses, expert or otherwise, whom the defendant intends to call to establish such defense.
(B) FAILURE TO FILE NOTICE
(1) If the defendant fails to file and serve a notice of insanity or mental infirmity defense as required by this rule, the court may exclude entirely any evidence offered by the defendant for the purpose of proving the defense, except testimony by the defendant, may grant a continuance to enable the Commonwealth to investigate such evidence, or may make any other order as the interests of justice require.
(2) If the defendant omits a witness from the notice of insanity or mental infirmity defense, the court at trial may exclude the testimony of the omitted witness, may grant a continuance to enable the Commonwealth to investigate such evidence, may grant a continuance to enable the Commonwealth to investigate the witness, or may make any other order as the interests of justice require.
(C) RECIPROCAL NOTICE OF WITNESSES
Within 10 days after receipt of the defendant's notice of the insanity or mental infirmity defense, or within such other time as allowed by the court upon cause shown, the attorney for the Commonwealth shall serve upon 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 insanity or mental infirmity.
(D) FAILURE TO SUPPLY RECIPROCAL NOTICE
(1) If the attorney for the Commonwealth fails to file and serve a list of its witnesses as required by this rule, the court may exclude any evidence offered by the Commonwealth for the purpose of disproving the insanity or mental infirmity defense, may grant a continuance to enable the defense to investigate such evidence, or may make such other order as the interests of justice require.
(2) If the attorney for the Commonwealth omits a witness from the list of its witnesses required by this rule, the court at trial may exclude the testimony of the omitted witness, may grant a continuance to enable the defense to investigate the witness, or may make such other order as the interests of justice require.
(E) CONTINUING DUTY TO DISCLOSE
If prior to or during trial a party learns of an additional witness whose identity, if known, should have been included in the notice furnished under paragraphs (A) or (C), the party shall promptly notify the other party or the other party's attorney of the existence and identity of such additional witness.
(F) FAILURE TO CALL WITNESSES
No adverse inference may be drawn against the defendant, nor may any comment be made concerning the defendant's failure to call available witnesses with regard to the insanity or mental infirmity defense, when such witnesses have been prevented from testifying by reason of this rule, unless the defendant or the defendant's attorney shall attempt to explain such failure to the jury.
Comment This rule, which is derived from paragraphs (C)(1)(b), (c)--(f), and (D) Rule 573 (Pretrial Discovery and Inspection) and was made a separate rule in 2001, sets forth the notice procedures when a defendant intends to raise a defense of insanity or mental infirmity at trial.
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).
See Rule 567 (Examination of Defendant by Commonwealth's Mental Health Expert) for the procedures for the examination of the defendant by the Commonwealth's expert when the defendant intends to introduce evidence concerning his or her mental condition in any proceeding.
Official Note: Adopted ______ , 2001, effective ______ , 2001.
Committee Explanatory Reports:
Report explaining the proposed new rule governing notice of insanity or mental infirmity defense published at 31 Pa.B. 2557 (May 19, 2001).
PART F. PROCEDURES FOLLOWING FILING OF INFORMATION Rule 573. Pretrial Discovery and Inspection.
* * * * * (C) DISCLOSURE BY THE DEFENDANT
[(1) MANDATORY:
(a) Notice of Alibi Defense:
A defendant who intends to offer the defense of alibi at trial shall, at the time required for filing the omnibus pretrial motion under Rule 578, file of record notice, signed by the defendant or the attorney for the defendant, with proof of service upon the attorney for the Commonwealth, specifying intention to claim such defense. Such notice shall contain specific information as to the place or places where the defendant claims to have been at the time of the alleged offense and the names and addresses of witnesses whom the defendant intends to call in support of such claim.
(b) Notice of Insanity Defense or Mental Infirmity Defense:
A defendant who intends to offer at trial the defense of insanity, or a claim of mental infirmity, shall, at the time required for filing an omnibus pretrial motion under Rule 578, file of record notice, signed by the defendant or the attorney for the defendant, with proof of service upon the attorney for the Commonwealth, specifying intention to claim such defense. Such notice shall contain specific available information as to the nature and extent of the alleged insanity or claim of mental infirmity, the period of time that the defendant allegedly suffered from such insanity or mental infirmity, and the names and addresses of witnesses, expert or otherwise, whom the defendant intends to call at trial to establish such defense.
(c) Disclosure of Reciprocal Witnesses:
Within 7 days after service of notice of alibi defense or of insanity or claim of mental infirmity defense, or within such other time as allowed by the court upon cause shown, the attorney for the Commonwealth shall disclose to the defendant the names and addresses of all persons the Commonwealth intends to call as witnesses to disprove or discredit the defendant's claim of alibi or of insanity or mental infirmity.
(d) Failure to File Notice:
If the defendant fails to file and serve notice of alibi defense or insanity, or mental infirmity defense as required by this rule, or omits any witness from such notice, the court at trial may exclude the testimony of any omitted witness, or may exclude entirely any evidence offered by the defendant for the purpose of proving the defense, except testimony by the defendant, or may grant a continuance to enable the Commonwealth to investigate such evidence, or may make such other order as the interests of justice require.
(e) Failure to Supply Reciprocal Notice:
If the attorney for the Commonwealth fails to file and serve a list of its witnesses as required by this rule, or omits any witness therefrom, the court at trial may exclude the testimony of any omitted witness, or may exclude any evidence offered by the Commonwealth for the purpose of disproving the alibi, insanity, or mental infirmity defense, or may grant a continuance to enable the defense to investigate such evidence, or may make such other order as the interests of justice require.
(f) Failure to Call Witnesses:
No adverse inference may be drawn against the defendant, nor may any comment be made concerning the defendant's failure to call available alibi, insanity, or mental infirmity witnesses, when such witnesses have been prevented from testifying by reason of this rule unless the defendant or the defendant's attorney shall attempt to explain such failure to the jury.
(g) Impeachment:
A defendant may testify concerning an alibi notwithstanding that the defendant has not filed notice, but if the defendant has filed notice and testifies concerning his or her presence at the time of the offense at a place or time different from that specified in the notice, the defendant may be cross-examined concerning such notice.
(2) DISCRETIONARY WITH THE COURT:
(a)] (1) * * *
[(i)] (a) * * *
[(ii)] (b) * * *
[(b)] (2) * * *
* * * * *
Comment
* * * * * Pursuant to paragraphs (B)(2)(b) and (C)(2)[(b)], the trial judge has discretion, upon motion, to order an expert who is expected to testify at trial to prepare a report. However, these provisions are not intended to require a prepared report in every case. The judge should determine, on a case-by-case basis, whether a report should be prepared. For example, a prepared report ordinarily would not be necessary when the expert is known to the parties and testifies about the same subject on a regular basis. On the other hand, a report might be necessary if the expert is not known to the parties or is going to testify about a new or controversial technique.
* * * * * [The notice-of-alibi provision of this rule contained in paragraph (C)(1)(a) is intended to comply with the requirement of Wardius v. Oregon, 412 U. S. 470 (1973), by the inclusion of reciprocal disclosure responsibilities placed upon the Commonwealth in paragraph (C)(1)(c). See also Commonwealth v. Contakos, 314 A.2d 259 (Pa. 1974). The provision requiring a notice of insanity defense, paragraph (C)(1)(b), has not previously been included in these rules, but the safeguards surrounding them have been made identical to those protecting the defendant under the notice-of-alibi provision.]
Paragraph (C)(1), which provided the requirements for notice of the defenses of alibi, insanity, and mental infirmity, was deleted in 2001 and moved to Rules 568 (Notice of Alibi Defense) and 569 (Notice of Defense of Insanity or Mental Infirmity).
* * * * * Official Note: Present Rule 305 replaces former Rules 310 and 312 in their entirety. Former Rules 310 and 312 adopted June 30, 1964, effective January 1, 1965. Former Rule 312 suspended June 29, 1973, effective immediately. Present Rule 305 adopted June 29, 1977 and November 22, 1977, effective as to cases in which the indictment or information is filed on or after January 1, 1978; Comment revised April 24, 1981, effective June 1, 1981; amended October 22, 1981, effective January 1, 1982; amended September 3, 1993, effective January 1, 1994; amended May 13, 1996, effective July 1, 1996; Comment revised July 28, 1997, effective immediately; Comment revised August 28, 1998, effective January 1, 1999; renumbered Rule 573 and amended March 1, 2000, effective April 1, 2001; amended ______ , 2001, effective ______ , 2001.
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. 1478 (March 18, 2000).
Report explaining the proposed changes to paragraph (C) deleting the notice of defenses of alibi, insanity, and mental infirmity published at 31 Pa.B. 2557 (May 19, 2001).
REPORT
Proposed New Rules 568 and 569, and
Amendments to Rule 573
NOTICE OF ALIBI DEFENSE AND
NOTICE OF DEFENSE OF INSANITY OR
MENTAL INFIRMITYI. Introduction
When developing proposed new Rule 567 (Examination of Defendant by Commonwealth's Mental Health Expert), which would establish uniform procedures for the examination of a defendant by a mental health expert employed by the Commonwealth,1 the Committee examined Rule 573 (Pretrial Discovery and Inspection), as well as the Federal Rules of Criminal Procedure and similar rules in other jurisdictions. As part of that examination, we noted that, unlike the Pennsylvania Rules, the Federal Rules and many other jurisdictions have separate rules setting forth the defendant's requirements for giving notice of defenses, in particular alibi and insanity, rather than combining the notices in the discovery rule. The Committee concluded from its review of F.Rs.Crim.P. 12.1 (Notice of Alibi) and 12.2 (Notice of Insanity Defense or Expert Testimony of Defendant's Mental Condition) and the other jurisdictions' rules that the federal approach makes sense and provides a clearer distinction between discovery procedures and notice procedures.
Agreeing the notice rules should be separate from Rule 573, the Committee discussed the placement of the new rules. Having previously decided that the new examination rule should be Rule 567, which would be the first rule in Chapter 5, Part F, the Committee agreed the notice rules should follow the examination rule and are proposing that the notice rules be Rules 568 and 569.
II. Discussion
A. New Rules 568 and 569
Except as otherwise noted below, new Rules 568 and 569 carry over verbatim the text of Rule 573(C)(1). The Committee used the opportunity of moving this text into separate rules to make some editorial and technical changes, as well as some changes we believe will make the notice rules clearer.
Rules 568(A) and 569(A) carry over the provisions from Rule 573(C)(1)(a) and (b) respectively. The Committee has reorganized the wording and broken the paragraph into subparagraphs dealing with (1) signing and filing the notice, and (2) the contents of the notice. In addition, because we agreed the defendant should give this notice as early as possible, we modified the rules to provide for the filing of the notices to be ''no later than the time required for filing the omnibus pretrial motion provided in Rule 579.'' In response to some members' concerns whether the exceptions to the time for filing the omnibus pretrial motion enumerated in Rule 579 applied to the notice rules' time limits, we agreed to explain in both Comments that the reference in paragraph (A) to the Rule 579 time requirements contemplates consideration of the exceptions to the time for filing set forth in Rule 579.
For purposes of organizational clarity, the Committee agreed to reverse the order of paragraphs (C)(1)(c) and (d) when moved from Rule 573. Therefore, in the new notice rules, the defendant's notice requirement is followed by the procedures governing the defendant's failure to give the notice. See Rules 568(B) and 569(B). Similarly, the provisions for the Commonwealth to give notice of the names of witnesses he or she intends to call to disprove or discredit the defendant's claim, Rules 568(C) and 569(C), will be followed by the procedures governing the Commonwealth's failure to give the notice, Rules 568(D) and 569(D).
In addition to the reorganization of these paragraphs, paragraph (C) concerning the Commonwealth's obligation to give notice has been modified. First, the Committee has changed the title of the paragraph from ''Disclosure of Reciprocal Witnesses,'' Rule 573(C)(1)(c), to ''Reciprocal Notice of Witnesses.'' We think this more accurately represents the content of the provision and ties it to the purpose of the rule. The Committee also has increased the time within which the Commonwealth must give the notice from 7 days to 10 days, which is in conformity with other time limits in the Criminal Rules and is more realistic. Finally, the Committee has changed the provision in Rule 573(C)(1)(c) from ''disclosure to the defendant'' to ''shall serve . . . written notice of the names and addresses . . . .'' The Committee agreed that it is important to have these notices in writing to avoid the confusion that sometimes arises when there is only oral notice.
The provisions in Rule 573(C)(1)(d) and (e), now Rules 568(B) and (D) and 569(B) and (D), have been reorganized into subparagraphs. The first subparagraph sets forth the sanctions for failing to file and serve the notice. The second subparagraph sets forth the sanctions for omitting a witness' name from the notice. Although many of the suggested sanctions are the same for both types of failure to comply, the Committee thought the rules would be clearer if the provisions were separated.
Rules 568(E) and 569(E) are taken from Rule 573(D). Although Rule 573(D) is not specifically included in the notice section of Rule 573, the Committee agreed that there would be a continuing duty to disclose witnesses whom the party intends to call in the notice context, and therefore included this provision in the new rules.
The first paragraph of the Comments to Rules 568 and 569 provide a history of the source of the new rules, cross-referencing Rule 573. In addition, the Rule 568 Comment carries over the Rule 573 Comment provision citing Wardius v. Oregon, 412 U. S. 470 (1973), and the Rule 569 Comment includes a cross-reference to the new examination rule, Rule 567.
B. Correlative Changes: Rule 573
Rule 573 would be amended by deleting the alibi and insanity notice provisions in Rule 573(C)(1)(a)--(g) and the corresponding Comment provision concerning notice of alibi. The paragraph (C)(2) caption ''Discretionary with the Court'' would be deleted as unnecessary now that all of the mandatory section under paragraph (C) has been deleted. Thus, paragraph (C) would begin with paragraph (1) ''In all court cases. . . .''
______1 The Committee's Report explaining the development of new Rule 567 has been published for comment together with this Report.
[Pa.B. Doc. No. 01-850. Filed for public inspection May 18, 2001, 9:00 a.m.]
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