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PA Bulletin, Doc. No. 06-833

THE COURTS

Title 234--RULES
OF CRIMINAL PROCEDURE

[234 PA. CODE CH. 5]

Order Approving the Revision of the Comment to Rule 522; No. 343 Criminal Procedural Rules; Doc. No. 2

[36 Pa.B. 2279]

Order

Per Curiam:

   Now, this 28th day of April, 2006, upon the recommendation of the Criminal Procedural Rules Committee; the proposal having been submitted without publication pursuant to Pa.R.J.A. 103(a)(3) in the interests of justice, 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 the revision of the Comment to Rule of Criminal Procedure 522 is approved in the following form.

   This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective August 1, 2006.

Annex A

TITLE 234. RULES OF CRIMINAL PROCEDURE

CHAPTER 5. PRETRIAL PROCEDURES IN
COURT CASES

PART C. Bail

Rule 522. Detention of Witnesses.

*      *      *      *      *

Comment

*      *      *      *      *

   In cases in which bail is set for a material witness pursuant to this rule, the court should consider all the types of release permitted in Rule 524 and the conditions of nonmonetary release upon bail available under Rule 527. When a material witness is to be detained, the court should impose the least restrictive means of assuring that witness' presence, including the use of release on the witness' own recognizance or release upon other nonmonetary conditions, such as electronic monitoring, especially when the witness has limited financial means to post monetary bail.

   Official Note: Former Rule 4017, previously Rule 4014, adopted November 22, 1965, effective June 1, 1966; renumbered Rule 4017 July 23, 1973, effective 60 days hence; Comment revised January 28, 1983, effective July 1, 1983; rescinded September 13, 1995, effective January 1, 1996, and replaced by present Rule 522. Present Rule 4017 adopted September 13, 1995, effective January 1, 1996. The January 1, 1996 effective dates extended to April 1, 1996; the April 1, 1996 effective date extended to July 1, 1996; renumbered Rule 522 and amended March 1, 2000, effective April 1, 2001; Comment revised April 28, 2006, effective August 1, 2006.

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).

   Final Report explaining the April 28, 2006 revision to the Comment concerning electronic monitoring published with the Court's Order at 36 Pa.B. 2279 (May 13, 2006).

FINAL REPORT1


Revision of the Comment to Pa.R.Crim.P. 522

Detention of Witnesses

   On April 28, 2006, effective August 1, 2006, upon the recommendation of the Criminal Procedural Rules Committee, the Court approved the revision of the Comment to Rule 522 (Detention of Witnesses). The changes highlight that, when bail is set for a material witness, the court should consider all the conditions of release upon bail available under Pa.R.Crim.P. 527.

   This Recommendation was developed in response to the Committee's review of correspondence to the Chief Justice from State Senator Constance Williams concerning a case in Montgomery County in which the victim of an aggravated assault was kept in the county prison for five months as a material witness. Senator Williams requested that consideration be given to revising Rule 522 to permit the use of electronic monitoring as another means of ensuring the availability of a material witness.

   In discussing Senator Williams' suggestion, the Committee noted that the rules already permit a judge setting bail to condition release upon the use of electronic monitoring. Rule 527 specifically permits nonmonetary conditions of bail to include ''any other appropriate conditions designed to ensure the defendant's appearance and compliance with the conditions of the bail bond.'' This provision intentionally was worded broadly to provide judges discretion to consider a wide array of nonmonetary types of release on bail, including release subject to electronic monitoring when that is an available option. Several members pointed out that this type of nonmonetary release is being used in several counties.2

   The Committee agreed this analysis applies equally to witnesses who are being detained pursuant to Rule 522. Paragraph (A) provides that bail for a material witness may be set ''subject to the provisions of this chapter'' (Chapter 5 Part C). Accordingly, a judge setting bail for a material witness must consider the types of release enumerated in Rule 524 and the categories of nonmonetary conditions of release set forth in Rule 527, which include the imposition of electronic monitoring as a condition of release for the material witness.

   However, the Committee recognizes that not all counties may be aware that electronic monitoring is a release option available for material witnesses.3
Accordingly, the Comment to Rule 522 is revised by the addition of a new sixth paragraph that emphasizes that the court should consider all available conditions of release pursuant to Rule 524 and any of the nonmonetary conditions of release in Rule 527, including the use of electronic monitoring in cases in which bail is set for a material witness.

[Pa.B. Doc. No. 06-833. Filed for public inspection May 12, 2006, 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.

2  Westmoreland County is one example. In addition, Adams County, under the authority of Rule 527, has established a local rule specifically authorizing a bail release program utilizing electronic monitoring.

3  The Committee also recognized that technical and budgetary constraints might preclude some counties from utilizing electronic monitoring and, therefore, did not wish to impose a requirement for its use.


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