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PA Bulletin, Doc. No. 02-1728

THE COURTS

Title 234--RULES OF CRIMINAL PROCEDURE

[234 PA. CODE CH. 1]

Order Adopting New Rule 117; No. 284 Criminal Procedural Rules; Doc. No. 2

[32 Pa.B. 4814]

   The Criminal Procedural Rules Committee has prepared a Final Report explaining new Rule of Criminal Procedure 117. This new rule prohibits the imposition of court fees against a defendant when a criminal proceeding is conducted using two-way simultaneous audio-visual communication. The Final Report follows the Court's Order.

Order

Per Curiam:

   Now, this 20th day of September, 2002, 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 new Rule of Criminal Procedure 117 is adopted in the following form.

   This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective January 1, 2003.

Annex A

TITLE 234.  RULES OF CRIMINAL PROCEDURE

CHAPTER 1.  SCOPE OF RULES, CONSTRUCTION AND DEFINITIONS, LOCAL RULES

PART A.  Business of the Courts

Rule 117.  Court Fees Prohibited For Two-Way Simultaneous Audio-Visual Communication.

   When a criminal proceeding is conducted by using two-way simultaneous audio-visual communication, the court shall not impose a fee upon the defendant for its use.

Comment

   This rule implements the March 13, 2002 Order of the Supreme Court of Pennsylvania (No. 241 Judicial Administration; Doc. No. 1) that states, ''No fees shall be imposed against a defendant in a criminal proceeding for the utilization of advanced communication technology.'' See 32 Pa.B. 1642 (March 30, 2002). When a criminal proceeding is conducted using two-way simultaneous audio-visual communication, this rule precludes the imposition of fees upon a defendant for the use of the two-way simultaneous audio-visual communication. See, e.g., Rules 540 (Preliminary Arraignment) and 571 (Arraignment). Two-way simultaneous audio-visual communication is a type of advanced communication technology as defined in Rule 103 (Definitions).

   A ''fee'' as used in this rule includes, but is not limited to, a cost, charge, surcharge, and service charge.

   Official Note: New Rule 117 adopted September 20, 2002, effective January 1, 2003.

Committee Explanatory Reports:

   Final Report explaining new Rule 117 published with the Court's Order at 32 Pa.B. 4815 (October 4, 2002).

FINAL REPORT 1

New Pa.R.Crim.P. 117

COURT FEES PROHIBITED FOR TWO-WAY SIMULTANEOUS AUDIO-VISUAL COMMUNICATION IN CRIMINAL PROCEEDINGS

   On September 20, 2002, effective January 1, 2003, upon recommendation of the Criminal Procedural Rules Committee, the Supreme Court of Pennsylvania adopted new Rule 117 (Court Fees Prohibited For Two-Way Simultaneous Audio-Visual Communication). The new rule makes it clear that when a criminal proceeding, such as a preliminary arraignment, is conducted by using two-way simultaneous audio-visual communication, the court shall not impose a fee upon the defendant for its use.

   On March 13, 2002, the Supreme Court promulgated an Order stating, ''No fees shall be imposed against a defendant in a criminal proceeding for the utilization of advanced communication technology.'' See 32 Pa.B. 1642 (March 30, 2002). Subsequently, the Committee received a directive from the Court to draft a proposal implementing the fee prohibition in the Criminal Rules. We recognized that the impetus for the Court's Order and directive to the Committee was the fact that as judicial districts instituted the use of advanced communication technology (''ACT''), many of them also began assessing fees against defendants when the criminal proceedings, such as preliminary arraignments, are conducted using two-way simultaneous audio-visual communication. This led to questions about the propriety of such fees, as well as to the authority to assess these fees.

   In developing our proposal, the members reviewed the recent changes to the Criminal Rules permitting the use of ACT in criminal proceedings. See Committee's Final Report, 32 Pa.B. 2591 (May 25, 2002). The primary reasons advanced for using ACT and two-way simultaneous audio-visual communication in criminal proceedings included, inter alia, that using the technology would be time saving, cost efficient, and convenient for the courts. However, the Committee, in developing the ACT proposal, never envisioned fees would be assessed against defendants for the use of two-way simultaneous audio-visual communication in criminal proceedings. The Committee had misgivings about such fees, particularly when defendants are not given the option to appear in person before the court for the proceeding, rather than proceed using ACT.

   In developing a rule to implement the March 13, 2002 Order prohibiting these fees, the Committee expressed concern that a prohibition against fees when ACT is used could cause confusion. The Rule 103 definition of the new term ''advanced communication technology,'' 2 is broader than what the Committee believes is intended to be covered by a rule prohibition on fees in these cases. Accordingly, new Rule 117 provides when a criminal proceeding is conducted by using two-way simultaneous audio-visual communication, the court shall not impose a fee upon the defendant for its use. The Comment explains: 1) the new rule implements the Court's March 13, 2002 Order; 2) two-way simultaneous audio-visual communication is a form of advanced communication; and 3) the term ''fee'' includes costs, charges, surcharges, and service charges.
______

   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 Final Reports.

   2 Rule 103 defines the term ''advanced communication technology'' as ''any communication equipment that is used a link between parties in physically separate locations, and includes, but is not limited to: systems providing for two-way simultaneous communication of image and sound; closed-circuit television; telephone and facsimile equipment; and electronic mail.''

[Pa.B. Doc. No. 02-1728. Filed for public inspection October 4, 2002, 9:00 a.m.]


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