THE COURTS
Title 234—RULES OF CRIMINAL PROCEDURE
[ 234 PA. CODE CHS. 1, 5, 6, 10 AND 11 ]
Proposed New Pa.Rs.Crim.P. 556—556.12, and Proposed Correlative Changes to Pa.Rs.Crim.P. 103, 540, 542, 544, 547, 560, 573, 578, 582, 646, 648, 1003 and 1101
[41 Pa.B. 5538]
[Saturday, October 15, 2011]The Criminal Procedural Rules Committee is planning to recommend that the Supreme Court of Pennsylvania adopt new Rules of Criminal Procedure 556 through 556.12, amend Rules of Criminal Procedure 103, 540, 544, 547, 560, 646, 1003, and 1101, and revise the Comments to Rules of Criminal Procedure 542, 573, 578, 582, and 648. The proposed new rules and correlative rule changes have been developed at the request of the Court and provide, inter alia, for the resumption of the use of indicting grand juries, but only as a local option in the narrowly defined circumstance of cases in which witness intimidation has occurred, is occurring, or is likely to occur. 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 new rules and amendments to the rules precedes the Report. Additions are shown in bold; deletions are in bold and brackets.
We request that interested persons submit suggestions, comments, or objections concerning this proposal in writing to the Committee through counsel,
Anne T. Panfil, Counsel
Supreme Court of Pennsylvania
Criminal Procedural Rules Committee
Pennsylvania Judicial Center
601 Commonwealth Ave., Suite 6200, P. O. Box 62635
Harrisburg, PA 17106-2635
fax: (717) 231-9521
e-mail: criminal.rules@pacourts.usno later than Thursday, November 10, 2011.
By the Criminal Procedural Rules Committee
RISA VETRI FERMAN,
Chair
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 103. Definitions.
The following words and phrases, when used in any Rule of Criminal Procedure, shall have the following meanings:
* * * * * INDICTMENT is [a bill of indictment which has been approved by a grand jury and properly returned to court, or which has been endorsed with a waiver as provided in former Rule 215] the instrument holding the defendant for court after a grand jury votes to indict and authorizing the attorney for the Commonwealth to prepare an information.
INFORMATION is a formal written [accusation] statement charging the commission of an offense [made] signed and presented to the court by the attorney for the Commonwealth [, upon which a defendant may be tried, which replaces the indictment in all counties since the use of the indicting grand jury has been abolished.] after a defendant is held for court or waives the preliminary hearing or a grand jury proceeding.
* * * * *
Comment The definitions of arraignment and preliminary arraignment were added in 2004 to clarify the distinction between the two proceedings. Although both are administrative proceedings at which the defendant is advised of the charges and the right to counsel, the preliminary arraignment occurs shortly after an arrest before a member of the minor judiciary, while an arraignment occurs in the court of common pleas after a case is held for court and an information is filed.
The definition of indictment was amended in 2011 consistent with the adoption of the new indicting grand jury rules in Chapter 5 Part E. Under the new rules, the indictment is the functional equivalent of an issuing authority's order holding the defendant for court and that forms the basis for the information that is prepared by the attorney for the Commonwealth. Formerly, an indictment was defined as a bill of indictment that has been approved by a grand jury and properly returned to court, or which has been endorsed with a waiver as provided in former Rule 215.
* * * * * Official Note: Previous Rules 3 and 212 adopted June 30, 1964, effective January 1, 1965, suspended January 31, 1970, effective May 1, 1970; present Rule 3 adopted January 31, 1970, effective May 1, 1970; amended June 8, 1973, effective July 1, 1973; amended February 15, 1974, effective immediately; amended June 30, 1977, effective September 1, 1977; amended January 4, 1979, effective January 9, 1979; amended July 12, 1985, effective January 1, 1986; January 1, 1986 effective date extended to July 1, 1986; amended August 12, 1993, effective September 1, 1993; amended February 27, 1995, effective July 1, 1995; amended September 13, 1995, effective January 1, 1996. The January 1, 1996 effective date extended to April 1, 1996; the April 1, 1996 effective date extended to July 1, 1996; renumbered Rule 103 and Comment revised March 1, 2000, effective April 1, 2001; amended May 10, 2002, effective September 1, 2002; amended March 3, 2004, effective July 1, 2004; amended April 30, 2004, effective July 1, 2004; amended August 24, 2004, effective August 1, 2005; amended February 4, 2005, effective immediately; amended May 6, 2009, effective immediately; amended , 2011, effective , 2011.
Committee Explanatory Reports:
* * * * * Report explaining the proposed amendments modifying the definitions of indictment and information published for comment at 41 Pa.B. 5549 (October 15, 2011).
CHAPTER 5. PRETRIAL PROCEDURES IN
COURT CASES
PART D. Proceedings in Court Cases
Before Issuing AuthoritiesRule 540. Preliminary Arraignment.
* * * * * (F) Unless the preliminary hearing is waived by a defendant who is represented by counsel, or the attorney for the Commonwealth is presenting the case to an indicting grand jury pursuant to Rule 556.2, the issuing authority shall:
(1) fix a day and hour for a preliminary hearing which shall not be [less than 3 nor more than 10 days after the preliminary arraignment,] later than 14 days after the preliminary arraignment if the defendant is in custody and no later than 21 days if not in custody unless:
* * * * *
Comment * * * * * Nothing in this rule is intended to address public access to arrest warrant affidavits. See Commonwealth v. Fenstermaker, 515 Pa. 501, 530 A.2d 414 ([Pa.] 1987).
* * * * * The 2011 amendment to paragraph (F) conforms this rule with the new procedures set forth in Chapter 5, Part E, permitting the attorney for the Commonwealth to proceed to an indicting grand jury without a preliminary hearing in cases in which witness intimidation has occurred, is occurring, or is likely to occur.
See Rule 1003(D) for the procedures governing preliminary arraignments in the Municipal Court.
Official Note: Original Rule 119 adopted June 30, 1964, effective January 1, 1965; suspended January 31, 1970, effective May 1, 1970. New Rule 119 adopted January 31, 1970, effective May 1, 1970; renumbered Rule 140 September 18, 1973, effective January 1, 1974; amended April 26, 1979, effective July 1, 1979; amended January 28, 1983, effective July 1, 1983; rescinded August 9, 1994, effective January 1, 1995. New Rule 140 adopted August 9, 1994, effective January 1, 1995; amended September 13, 1995, effective January 1, 1996. The January 1, 1996 effective date extended to April 1, 1996; the April 1, 1996 effective date extended to July 1, 1996; renumbered Rule 540 and amended March 1, 2000, effective April 1, 2001; amended May 10, 2002, effective September 1, 2002; amended August 24, 2004, effective August 1, 2005; amended , effective , 2011.
Committee Explanatory Reports:
* * * * * Report explaining the proposed amendments concerning indicting grand juries published for comment at 41 Pa.B. 5549 (October 15, 2011).
Rule 542. Preliminary Hearing; Continuances.
* * * * *
Comment * * * * * For the contents of the transcript, see Rule 135.
See Chapter 5 Part E for the procedures governing indicting grand juries. Under these rules, a case may be presented to the grand jury instead of proceeding to a preliminary hearing. See Rule 556.2.
Official Note: Former Rule 141, previously Rule 120, adopted June 30, 1964, effective January 1, 1965; suspended January 31, 1970, effective May 1, 1970; revised January 31, 1970, effective May 1, 1970; renumbered Rule 141 and amended September 18, 1973, effective January 1, 1974; amended June 30, 1975, effective July 30, 1975; amended October 21, 1977, effective January 1, 1978; paragraph (D) amended April 26, 1979, effective July 1, 1979; amended February 13, 1998, effective July 1, 1998; rescinded October 8, 1999, effective January 1, 2000. Former Rule 142, previously Rule 124, adopted June 30, 1964, effective January 1, 1965, suspended effective May 1, 1970; present rule adopted January 31, 1970, effective May 1, 1970; renumbered Rule 142 September 18, 1973, effective January 1, 1974; amended October 22, 1981, effective January 1, 1982; effective date extended to July 1, 1982; amended July 12, 1985, effective January 1, 1986, effective date extended to July 1, 1986; rescinded October 8, 1999, effective January 1, 2000. New Rule 141, combining former Rules 141 and 142, adopted October 8, 1999, effective January 1, 2000; renumbered Rule 542 and Comment revised March 1, 2000, effective April 1, 2001; amended August 24, 2004, effective August 1, 2005; amended March 9, 2006, effective September 1, 2006; amended May 1, 2007, effective September 4, 2007, and May 1, 2007 Order amended May 15, 2007; amended January 27, 2011, effective in 30 days; amended , 2011, effective , 2011.
Committee Explanatory Reports:
* * * * * Report explaining the proposed revision of the Comment concerning indicting grand juries published for comment at 41 Pa.B. 5549 (October 15, 2011).
Rule 544. Reinstituting Charges Following Withdrawal or Dismissal.
(A) When charges are dismissed or withdrawn at, or prior to, a preliminary hearing, or when a grand jury declines to indict, the attorney for the Commonwealth may reinstitute the charges by approving, in writing, the [refiling] re-filing of a complaint with the issuing authority who dismissed or permitted the withdrawal of the charges.
(B) Following the [refiling] re-filing of a complaint pursuant to paragraph (A), if the attorney for the Commonwealth determines that the preliminary hearing should be conducted by a different issuing authority, the attorney shall file a Rule 132 motion with the clerk of courts requesting that the president judge, or a judge designated by the president judge, assign a different issuing authority to conduct the preliminary hearing. The motion shall set forth the reasons for requesting a different issuing authority.
Comment This rule provides the procedures for reinstituting criminal charges following their withdrawal or dismissal at, or prior to, the preliminary hearing, or after a grand jury declines to indict.
The authority of the attorney for the Commonwealth to reinstitute charges that have been dismissed at the preliminary hearing is well established by case law. See, e.g., McNair's Petition, 324 Pa. 48, 187 A. 498 ([Pa.] 1936); Commonwealth v. Thorpe, 549 Pa. 343, 701 A.2d 488 ([Pa.] 1997). This authority, however, is not unlimited. First, the charges must be reinstituted prior to the expiration of the applicable statute(s) of limitations. See Commonwealth v. Thorpe, 549 Pa. 343, 701 A.2d 488 ([Pa.] 1997). In addition, the courts have held that the reinstitution may be barred in a case in which the Commonwealth has repeatedly rearrested the defendant in order to harass him or her, or if the rearrest results in prejudice. See Commonwealth v. Thorpe, 549 Pa. 343, 701 A.2d 488 ([Pa.] 1997); Commonwealth v. Shoop, 420 Pa. Super. 606, 617 A.2d 351 ([Pa. Super.] 1992).
The decision to reinstitute charges must be made by the attorney for the Commonwealth. Therefore, in cases in which no attorney for the Commonwealth was present at the preliminary hearing, the police officer may not [refile] re-file the complaint without the written authorization of the attorney for the Commonwealth. See Rule 507 (Approval of Police Complaints and Arrest Warrant Affidavits by Attorney for the Commonwealth—Local Option) for procedures for prior approval of complaints.
* * * * * See Chapter 5 Part E for the procedures governing indicting grand juries. If the attorney for the Commonwealth is reinstituting the charges after a grand jury has declined to indict, the complaint should be re-filed with the issuing authority with whom the original complaint was filed.
See Chapter 5 Part F(1) for the procedures governing motions.
Official Note: Original Rule 123, adopted June 30, 1964, effective January 1, 1965; suspended January 31, 1970, effective May 1, 1970. New Rule 123 adopted January 31, 1970, effective May 1, 1970; renumbered Rule 143 September 18, 1973, effective January 1, 1974; amended January 28, 1983, effective July 1, 1983; amended August 9, 1994, effective January 1, 1995; amended September 13, 1995, effective January 1, 1996. The January 1, 1996 effective date extended to April 1, 1996; the April 1, 1996 effective date extended to July 1, 1996; renumbered Rule 142 October 8, 1999, effective January 1, 2000. New Rule 143 adopted October 8, 1999, effective January 1, 2000; renumbered Rule 544 and amended March 1, 2000, effective April 1, 2001; amended , 2011, effective , 2011.
Committee Explanatory Reports:
* * * * * Report explaining the proposed amendments to paragraph (A) concerning indicting grand juries published for comment at 41 Pa.B. 5549 (October 15, 2011).
Rule 547. Return of Transcript and Original Papers.
(A) When a defendant is held for court, either following a preliminary hearing or an indictment by a grand jury, the issuing authority shall prepare a transcript of the proceedings. The transcript shall contain all the information required by these rules to be recorded on the transcript. It shall be signed by the issuing authority, and have affixed to it the issuing authority's seal of office.
* * * * * (C) In addition to this transcript the issuing authority shall also transmit the following items:
* * * * * (5) a request for the court of common pleas to issue a bench warrant as required in Rule 543(D)(3)(b); [and]
(6) notice informing the court of common pleas that the defendant has failed to comply with the fingerprint order as required in Rule 543(D)(3)(b)(ii)[.] ; and
(7) when the defendant is indicted by the grand jury, the copy of the indictment.
Comment * * * * * When the case is held for court pursuant to Rule 543(D)(3)(b)(ii), the issuing authority must include with the transcript transmittal a notice to the court of common pleas that the defendant has not complied with the fingerprint order issued pursuant to Rule 510(C)(2). See Rule 543(D)(3)(b)(ii). The court of common pleas must take whatever actions deemed appropriate to address this non-compliance.
See Chapter 5 Part E for the procedures governing indicting grand juries. Pursuant to Rule 556.11, the supervising judge will forward a copy of the indictment to the issuing authority for inclusion with documents forwarded with the transcript under this rule. When the case is transmitted to the court of common pleas, the clerk of courts should associate the transcript and other documents transmitted by the issuing authority with the original indictment filed by the supervising judge.
Official Note: Formerly Rule 126, adopted June 30, 1964, effective January 1, 1965; suspended January 31, 1970, effective May 1, 1970; revised January 31, 1970, effective May 1, 1970; renumbered Rule 146 and amended September 18, 1973, effective January 1, 1974; amended October 22, 1982, effective January 1, 1982; amended July 12, 1985, effective January 1, 1986; effective date extended to July 1, 1986; renumbered Rule 547 and amended March 1, 2000, effective April 1, 2001; amended August 24, 2004, effective August 1, 2005; amended May 1, 2007, effective September 4, 2007, and May 1, 2007 Order amended May 15, 2007; amended July 10, 2008, effective February 1, 2009; amended , 2011, effective , 2011.
Committee Explanatory Reports:
* * * * * Final Report explaining the July 10, 2008 amendments to paragraph (C)(6) concerning the fingerprint order published at [37] 38 Pa.B. 3975 (July 26, [2007] 2008).
Report explaining proposed amendments to paragraph (A) and adding paragraph (C)(7) concerning indicting grand juries published for comment at 41 Pa.B. 5549 (October 15, 2011).
(Editor's Note: Rules 556—556.12 are new and printed in regular type to enhance readability.)
PART E. Indicting Grand Jury Rule
556. Indicting Grand Jury. 556.1 Summoning Panels of Grand Jurors. 556.2. Proceeding by Indicting Grand Jury Without Preliminary Hearing. 556.3. Composition and Organization of the Indicting Grand Jury. 556.4. Challenges to Grand Jury and Grand Jurors. 556.5. Duration of Indicting Grand Jury. 556.6. Administering Oath to Grand Jury and Foreperson. 556.7. Administration of Oath to Witnesses; Court Personnel. 556.8. Recording of Testimony Before Indicting Grand Jury. 556.9. Who May be Present During Sessions of Indicting Grand Jury. 556.10. Secrecy; Disclosure. 556.11. Proceedings When Case Presented to Grand Jury. 556.12. Waiver of Grand Jury Action. Rule 556. Indicting Grand Jury.
Each of the several courts of common pleas may proceed with an indicting grand jury pursuant to these rules only in cases in which witness intimidation has occurred, is occurring, or is likely to occur.
Comment This rule was adopted in 2011 to permit the use of an indicting grand jury as an alternative to the preliminary hearing but only in cases in which witness intimidation has occurred, is occurring, or is likely to occur.
Official Note: New Rule 556 adopted , effective .
Committee Explanatory Reports:
Report explaining the proposed new rule published at 41 Pa.B. 5549 (October 15, 2011).
Rule 556.1 Summoning Panels of Grand Jurors.
(A) When the court of common pleas elects to proceed with an indicting grand jury, the president judge, or president judge's designee, shall order one or more grand juries to be summoned for the purpose of issuing indictments or shall order that the sitting investigating grand jury shall sit as the indicting grand jury.
(B) The judge shall order the officials designated by law to summon prospective jurors to summon such number of jurors who are eligible by law as the judge deems necessary to serve as a panel for grand jury service.
(C) The summons shall be made returnable on such date as is ordered by the court.
Comment Pursuant to paragraph (A), the president judge, or president judge's designee, may order that an investigating grand jury that is sitting will also serve in the capacity of the indicting grand jury. To the extent that 42 Pa.C.S. § 4548(c) is inconsistent with this rule, the statute is suspended by Rule 1101 (Suspension of Acts of Assembly).
The number of persons who may be summoned is left to the discretion of the president judge or the president judge's designee to accommodate the needs of the judicial district.
The qualification, selection, and summoning of prospective jurors, as well as related matters, are generally dealt with in 42 Pa.C.S. §§ 4501—4503, 4521—4527, 4531—4532.
Official Note: New Rule 556.1 adopted , effective .
Committee Explanatory Reports:
Report explaining the proposed new rule published at 41 Pa.B. 5549 (October 15, 2011).
Rule 556.2. Proceeding by Indicting Grand Jury Without Preliminary Hearing.
(A) After a person is arrested or otherwise proceeded against with a criminal complaint, the attorney for the Commonwealth may move to present the matter to a grand jury instead of proceeding to a preliminary hearing.
(1) The motion shall allege facts asserting that witness intimidation has occurred, is occurring, or is likely to occur.
(2) The motion shall be presented ex parte to the president judge, or the president judge's designee.
(3) Upon receipt of the motion, the president judge, or the president judge's designee, shall review the motion. If the judge determines the allegations are sufficient, the judge shall grant the motion, and shall notify the proper issuing authority.
(4) The order granting the motion and the motion shall be sealed.
(5) The attorney for the Commonwealth shall file the sealed order and the sealed motion with the clerk of courts.
(B) If not already assigned, the president judge shall assign one of the judges in the judicial district to serve as the supervising judge for the indicting grand jury.
(C) If the motion is granted, the case shall be presented to the grand jury within 21 days of the date of the order, unless the grand jury proceedings are waived by the defendant with the consent of the attorney for the Commonwealth.
(D) If the district attorney elects not to present the case to a grand jury, the defendant is entitled to a preliminary hearing before the proper issuing authority.
Comment An accused in Pennsylvania ordinarily has the right to a preliminary hearing before he or she may be indicted by the grand jury. See Commonwealth v. Hoffman, 396 Pa. 491, 152 A.2d 726 (1959). However, the 2011 amendments to the rules permit the attorney for the Commonwealth to proceed to the indicting grand jury without first presenting the matter to an issuing authority for a preliminary hearing but only in cases in which witness intimidation has occurred, is occurring, or is likely to occur.
Pursuant to paragraph (A)(2), the president judge may designate another judge to receive motions from the attorney for the Commonwealth. It is anticipated that this designee will be the judge designated to be the supervising judge of the grand jury.
See Rule 556.11 for the procedures when a case is presented to the grand jury.
See Rule 556.12 for the procedures for the defendant to waive the grand jury proceedings.
If, after a motion to proceed to a grand jury is granted, the attorney for the Commonwealth elects not to present the case to the grand jury, the case will proceed as any other criminal case following the preliminary arraignment. See Rules 541—547.
Official Note: New Rule 556.2 adopted , effective .
Committee Explanatory Reports:
Report explaining the proposed new rule published at 41 Pa.B. 5549 (October 15, 2011).
Rule 556.3. Composition and Organization of the Indicting Grand Jury.
(A) There initially shall be impaneled to serve on an indicting grand jury 23 legally qualified jurors and a minimum of 7 and not more than 15 legally qualified alternates. During its term, the indicting grand jury shall consist, as provided hereinafter, of not less than 15 nor more than 23 legally qualified jurors, and the remaining alternates.
(B) When an indicting grand jury is to be impaneled, the supervising judge in charge of the grand jury shall examine prospective jurors to determine which prospective jurors to excuse for cause. After prospective grand jurors have been excused for cause, the reduction to the minimum of 30 or maximum of 38 shall take place by random drawing in the following manner: 30 to 38 jurors shall be selected by random drawing, of which the first 23 jurors so selected shall be designated permanent grand jurors and the next 7 to 15 jurors shall be designated alternate jurors. Alternate jurors shall replace permanent jurors in the sequence in which the alternate jurors are selected.
(C) Alternate jurors shall attend and participate in sessions of the grand jury but they may not attend or participate in the deliberations and voting until such time as they may be appointed as permanent grand jurors as provided in paragraph (D).
(D) The court shall have the power to permanently excuse a permanent or alternate grand juror for cause at any time during the term of the indicting grand jury. For each such excused permanent grand juror, the court shall appoint a new permanent grand juror from among the available alternates.
(E) Fifteen permanent members of the grand jury shall constitute a quorum, but an affirmative vote of 12 permanent members of the grand jury shall be required to indict.
(F) Whenever the number of permanent grand jurors, including alternates who have been appointed to replace permanent grand jurors, becomes less than 15, the term of the indicting grand jury shall be considered at an end.
(G) The supervising judge shall appoint one of the grand jurors as foreperson and another juror as the deputy foreperson, who will act in the foreperson's absence. The grand jury shall select one of its members as a secretary to assist the foreperson in keeping a record of the action of the grand jury.
Comment To accommodate the possibility that a grand jury would serve the dual function of both an investigating and indicting grand jury, see Rule 556.2(A), the procedures in this rule comport to the procedures in Rule 222 (Composition and Organization of the Investigating Grand Jury).
The term ''permanent grand juror'' is used to distinguish grand jurors with the power to vote from alternate grand jurors. The purpose of providing a built-in system of alternates is to ensure the smooth functioning of the grand jury throughout its term and to provide that alternates, when made permanent grand jurors, will be fully cognizant of all the proceedings before the grand jury.
It is intended that no alternate may be appointed as a temporary substitute for a permanent grand juror, and that the court will excuse permanent grand jurors only when necessary and in the interests of justice. However, whenever a permanent juror is excused for cause and an alternate is available to become a permanent grand juror, the court must substitute an alternate for the excused permanent grand juror. It is intended that such substitution be made in the order of the alternate jurors' numerical designation.
Official Note: New Rule 556.3 adopted , effective .
Committee Explanatory Reports:
Report explaining the proposed new rule published at 41 Pa.B. 5549 (October 15, 2011).
Rule 556.4. Challenges to Grand Jury and Grand Jurors.
(A) Challenges
The attorney for the Commonwealth or a defendant may challenge the grand jury on the ground that it was not lawfully drawn, summoned, or selected, and may challenge an individual juror on the ground that the juror is not legally qualified.
(1) The challenge shall be in the form of a written motion and shall allege the ground upon which the challenge is made.
(2) If a challenge to an individual grand juror is sustained, the juror shall be discharged and replaced with an alternate juror.
(B) Motion to Dismiss
(1) The attorney for the Commonwealth or a defendant may move to dismiss the information filed following the grand jury's vote to indict the defendant based on the following grounds:
(a) an objection to the grand jury or on an individual juror's lack of legal qualification, unless the court has previously ruled on the same objection under paragraph (A);
(b) the evidence did not establish probable cause that the defendant committed the crime or crimes charged;
(c) lack of jurisdiction of the grand jury; or
(d) expiration of the Statute of Limitations.
(2) The judge shall not dismiss the information on the ground that a grand juror was not legally qualified if the record shows that at least 12 qualified jurors concurred in the indictment.
(C) Any motion under paragraph (A) or paragraph (B) shall be made as part of the omnibus pretrial motion.
Comment Concerning the right to challenge the array of the grand jury, see, Commonwealth v. Dessus, 423 Pa. 177, 224 A.2d 188 (1966), in which the Court held, inter alia, that ''the law must not deprive an accused of any of his legal or Constitutional rights in this case the right to promptly (a) challenge the array of the grand jury and (b) prove by legally competent evidence that one or more of the grand jurors should be disqualified for cause.''
Nothing in this rule is intended to limit the availability of habeas corpus review as provided by law.
Nothing in this rule is intended to require notice to the defendant of the time and place of the impaneling of a grand jury, or to give the defendant the right to be present for the selection of the grand jury.
Official Note: New Rule 556.4 adopted , effective .
Committee Explanatory Reports:
Report explaining the proposed new rule published at 41 Pa.B. 5549 (October 15, 2011).
Rule 556.5. Duration of Indicting Grand Jury.
(A) The length of the grand jury term shall be determined by the president judge, or the president judge's designee, but shall not exceed 18 months, unless an order for discharge is entered earlier by the supervising judge upon determination by the grand jury, by majority vote, that its business has been completed, or an extension is granted pursuant to paragraph (B).
(B) At the end of its original term or any extension thereof, if the grand jury determines by majority vote that it has not completed its business, it may request the supervising judge to extend its term for an additional period of 6 months. No grand jury term shall exceed 24 months from the time the grand jury was originally summoned.
(1) The supervising judge shall grant a request for extension unless the judge determines that such request clearly is without basis.
(2) Failure to grant an extension of term under this rule may be appealed by the attorney for the Commonwealth to the Supreme Court in the manner prescribed by general rule.
(3) If an appeal is taken, the grand jury shall continue to exercise its powers pending the disposition of the appeal.
(C) At any time within the original term of a grand jury, or any extension thereof, if the supervising judge determines that the grand jury is not conducting proper indicting activity, the judge may order that the grand jury be discharged.
(1) An order of discharge under this rule shall not become effective less than 10 days after the date on which the order is issued and actual notice given to the attorney for the Commonwealth and the foreperson of the grand jury.
(2) The order may be appealed by the attorney for the Commonwealth to the Supreme Court in the manner prescribed by general rule.
(3) If an appeal is taken, the grand jury shall continue to exercise its powers pending the disposition of the appeal.
Comment The procedures governing the duration of the indicting grand jury are consistent with the procedures for investigating grand juries as set forth in 42 Pa.C.S. § 4546.
Official Note: New Rule 556.5 adopted , effective .
Committee Explanatory Reports:
Report explaining the proposed new rule published at 41 Pa.B. 5549 (October 15, 2011).
Rule 556.6. Administering Oath to Grand Jury and Foreperson.
(A) After the selection of the members of the grand jury, the supervising judge shall administer the oath separately to the foreperson and deputy foreperson and then to the other grand jurors. The supervising judge shall then charge the grand jury concerning its duties.
(B) The supervising judge shall administer the oath to the grand jury in substantially the following form:
''You, as grand jurors, do solemnly swear that you will make diligent inquiry with regard to all matters brought before you as well as such things as may come to your knowledge in the course of your duties; that you will keep secret all that transpires in the jury room except as authorized by law; that you will neither approve any indictment or present any person for hatred, envy or malice, or refuse to approve any indictment or present any person for love, fear, favor, or any reward or hope thereof; and that you will present all things truly to the court as they come to your knowledge and understanding.''(C) The supervising judge shall administer the oath to the foreperson and deputy foreperson in substantially the following form:
''You, as foreperson, do solemnly swear that you will make diligent inquiry with regard to all matters as shall be given you in charge; that you will keep secret all that transpires in the jury room, except as authorized by law; that you will neither approve any indictment or present any person for hatred, envy or malice, or refuse to approve any indictment or present any person for love, fear, favor, or any reward or hope thereof; and that you will present all things truly to the court as they come to your knowledge and understanding.''
Comment It is intended that all grand jurors, including alternate grand jurors, will be sworn at this time.
Official Note: New Rule 556.6 adopted , effective .
Committee Explanatory Reports:
Report explaining the proposed new rule published at 41 Pa.B. 5549 (October 15, 2011).
Rule 556.7. Administration of Oath to Witnesses; Court Personnel.
(A) Each witness to be heard by the indicting grand jury shall be sworn by the foreperson before testifying.
(B) All court personnel who are to be present during any portion of the grand jury proceedings, and all others who assist in the proceedings, shall be sworn to secrecy by the supervising judge prior to their participation.
Comment When it is necessary to give constitutional warnings to a witness, the warnings and the oath must be administered by the supervising judge. As to warnings that the court may have to give to the witness when the witness is sworn, see, e.g., Commonwealth v. McCloskey, 443 Pa. 117, 277 A.2d 764 (1971).
Official Note: New Rule 556.7 adopted , effective .
Committee Explanatory Reports:
Report explaining the proposed new rule published at 41 Pa.B. 5549 (October 15, 2011).
Rule 556.8. Recording of Testimony Before Indicting Grand Jury.
(A) Proceedings before an indicting grand jury, other than the deliberations and voting of the grand jury, shall be recorded by a court reporter or by a suitable recording device, and a transcript made.
(B) The supervising judge shall retain control of the recording device and the original and all copies of the transcript, and shall maintain their secrecy.
(C) When physical evidence is presented before the indicting grand jury, the supervising judge shall establish procedures for supervising custody.
(D) In cases in which an indictment is not returned, the notes or transcriptions shall be destroyed unless ordered by the supervising judge to be preserved for good cause shown, including but not limited to the prosecution of a witness for perjury.
Comment This rule requires that the supervising judge retain control over the transcript of the indicting grand jury proceedings and all copies thereof, as the record is transcribed, until such time as the transcript is released as provided in these rules.
Official Note: New Rule 556.8 adopted , effective .
Committee Explanatory Reports:
Report explaining the proposed new rule published at 41 Pa.B. 5549 (October 15, 2011).
Rule 556.9. Who May be Present During Sessions of Indicting Grand Jury.
(A) The attorney for the Commonwealth, the alternate grand jurors, the witness under examination, and a stenographer may be present while the indicting grand jury is in session. Counsel for the witness under examination may be present as provided by law.
(B) The supervising judge, upon the request of the attorney for the Commonwealth or the grand jury, may order that an interpreter, security officers, and such other persons as the judge may determine are necessary to the presentation of the evidence may be present while the indicting grand jury is in session.
(C) All persons who are to be present while the indicting grand jury is in session shall be identified in the record, shall be sworn to secrecy as provided in these rules, and shall not disclose any information pertaining to the grand jury except as provided by law.
(D) No person other than the permanent grand jurors may be present during the deliberations or voting of the grand jury.
Comment It is intended in paragraph (B) that when the supervising judge authorizes a certain individual to be present during a session of the indicting grand jury, the person may remain in the grand jury room only as long as is necessary for that person to assist the grand jurors.
Paragraph (C) prohibits the disclosure of any information related to testimony before the indicting grand jury. This prohibition differs from the disclosure provisions in 42 Pa.C.S. § 4549 for investigating grand juries that provides some exceptions for witnesses to disclose their testimony.
See also Rule 556.10 concerning secrecy and disclosure of indicting grand jury proceedings.
Nothing in these rules precludes the supervising judge from permitting a witness to testify using two-way simultaneous audio-visual communication.
Official Note: New Rule 556.9 adopted , effective .
Committee Explanatory Reports:
Report explaining the proposed new rule published at 41 Pa.B. 5549 (October 15, 2011).
Rule 556.10. Secrecy; Disclosure.
(A) Secrecy
(1) All evidence, including exhibits and all testimony presented to the grand jury, is subject to grand jury secrecy, and no person may disclose any matter occurring before the grand jury.
(2) A violation of grand jury secrecy rules may be punished as a contempt of court.
(B) Disclosure
(1) Attorney for the Commonwealth:
Upon receipt of the certified transcript of the proceedings before the indicting grand jury, the supervising judge shall furnish a copy of the transcript to the attorney for the Commonwealth for use in the performance of official duties.
(2) Defendant in a Criminal Case:
(a) If a defendant in a criminal case has testified before the indicting grand jury concerning the subject matter of the charges against him or her, upon application of such defendant, the supervising judge shall order that the defendant be furnished with a copy of the transcript of such testimony.
(b) Pretrial discovery in cases indicted by a grand jury is subject to Rule 573, except that discovery shall not be ordered until 30 days before the commencement of trial. Pretrial discovery includes the transcripts of the testimony of any witnesses in a criminal case who have testified before the indicting grand jury concerning the subject matter of the charges against the defendant and, when ordered by the supervising judge, the grand jury material that is subject to the secrecy provisions in paragraph (A).
(c) The attorney for the Commonwealth may request that the supervising judge delay the disclosure of a grand jury witness' testimony, but such delay in disclosure shall not be later than the conclusion of direct testimony of that witness at trial.
(3) Other Disclosures:
Disclosure of grand jury material or matters, other than the grand jury's deliberations and the vote of individual jurors, may be made to any law enforcement personnel that an attorney for the Commonwealth considers necessary to assist in the enforcement of the criminal law.
(C) The supervising judge shall close to the public any hearing relating to grand jury proceedings to the extent necessary to prevent disclosure of a matter occurring before a grand jury. Records, orders, and subpoenas relating to grand jury proceedings shall be kept under seal to prevent the unauthorized disclosure of a matter occurring before a grand jury.
Comment The attorney for the Commonwealth has an affirmative duty to provide the defendant with any testimony before the indicting grand jury and any physical evidence presented to the grand jury that is exculpatory to the defendant consistent with the line of cases beginning with Brady v. Maryland, 373 U.S. 83 (1963), and the refinements of the Brady standards embodied in subsequent judicial decisions.
Paragraph (B) establishes the limitations on pretrial discovery in cases in which a defendant has been indicted by a grand jury information. Although the Criminal Rules generally recognize the defendant's right to have pretrial discovery to be able to prepare his or her case, given the nature of the cases presented to the grand jury, see Rule 556, this rule provides for the limited delay in providing pretrial discovery of grand jury testimony until 30 days before the commencement of trial. For purposes of this rule, a trial commences when the trial judge determines that the parties are present and directs them to proceed to voir dire or to opening argument, or to the hearing of any motions that had been reserved for the time of trial, or to the taking of testimony, or to some other such first step in the trial. It is not intended that preliminary calendar calls should constitute commencement of a trial.
Paragraph (B)(2)(b)(ii) permits the supervising judge to extend the time for the disclosure of a grand jury witness' testimony upon the request of the attorney for the Commonwealth. Under no circumstances may the extension be later than the completion of the witness' direct testimony at trial.
The supervising judge may grant a continuance to enable the defendant to review the grand jury testimony as the interests of justice require.
Official Note: New Rule 556.10 adopted , effective .
Committee Explanatory Reports:
Report explaining the proposed new rule published at 41 Pa.B. 5549 (October 15, 2011).
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