THE COURTS

Title 234—RULES OF CRIMINAL PROCEDURE

[ 234 PA. CODE CH. 5 ]

Proposed Revision of the Comment to Rule 500

[45 Pa.B. 3810]
[Saturday, July 18, 2015]

 The Criminal Procedural Rules Committee is planning to propose to the Supreme Court of Pennsylvania the revision of the Comment to Rule 500 (Preservation of Testimony After Institution of Criminal Proceedings) for the reasons set forth in the accompanying explanatory report. Pursuant to Pa.R.J.A. No. 103(a)(1), the proposal is being published in the Pennsylvania Bulletin for comments, suggestions, or objections prior to submission to the Supreme Court.

 Any reports, notes, or comments in the proposal have been inserted by the Committee for the convenience of those using the rules. They neither will constitute a part of the rules nor will be officially adopted by the Supreme Court.

 Additions to the text of the proposal are bolded; deletions to the text are bolded and bracketed.

 The Committee invites all interested persons to submit comments, suggestions, or objections in writing to:

 Jeffrey M. Wasileski, Counsel
Supreme Court of Pennsylvania
Criminal Procedural Rules Committee
601 Commonwealth Avenue, Suite 6200
Harrisburg, PA 17106-2635
fax: (717) 231-9521
e-mail: criminalrules@pacourts.us

 All communications in reference to the proposal should be received by no later than Friday, September 4, 2015. E-mail is the preferred method for submitting comments, suggestions, or objections; any e-mailed submission need not be reproduced and resubmitted via mail. The Committee will acknowledge receipt of all submissions.

By the Criminal Procedural Rules Committee

PAUL M. YATRON, 
Chair

Annex A

TITLE 234. RULES OF CRIMINAL PROCEDURE

CHAPTER 5. PRETRIAL PROCEDURES IN COURT CASES

PART A. Preservation of Testimony

Rule 500. Preservation of Testimony After Institution of Criminal Proceedings.

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Comment

*  *  *  *  *

 ''May be unavailable,'' as used in paragraph (A), is intended to include situations in which the court has reason to believe that the witness will be unable to be present or to testify at trial or other proceedings, such as when the witness is dying, or will be out of the jurisdiction and therefore cannot be effectively served with a subpoena, or is elderly, frail, or demonstrates the symptoms of mental infirmity or dementia, or may become incompetent to testify for any other legally sufficient reason.

*  *  *  *  *

 Official Note: Rule 9015 adopted November 8, 1982, effective January 1, 1983; amended March 22, 1989, effective July 1, 1989; renumbered Rule 500 and amended March 1, 2000, effective April 1, 2001; Comment revised   , 2015, effective   , 2015.

 Committee Explanatory Reports:

*  *  *  *  *

 Report explaining the proposed Comment revisions refining the definition of ''unavailable'' to include the elderly published for comment at 45 Pa.B. 3810 (July 18, 2015).

REPORT

Proposed Revision of the Comment to
Pa.R.Crim.P. 500

Availability of the Elderly to Testify

 Recently, the Committee was asked by the Court to consider the recommendations of Elder Law Task Force related to criminal procedure. In April 2013, the Court created the Elder Law Task Force to study the issues of access to justice being faced by older Pennsylvanians. In November 2014, the Task Force issued a report with a number of recommendations intended to enhance the way Pennsylvania elders interact with the state court system and are protected in cases involving abuse, neglect, guardianship, conservatorship and other matters.¹ Based on the recommendation of the Task Force, the Court established an Office of Elder Justice in the Courts to implement many of the recommendations in the report as well as an Advisory Council on Elder Justice in the Courts to serve as the judiciary's liaison to the executive and legislative branches.

 One of the Task Force's recommendations related to criminal procedural issues is the suggestion that the Comment to Pa.R.Crim.P. 500 (Preservation of Testimony) be revised ''to help ensure the testimony of elder victims and witnesses in criminal cases can be preserved.''² Rule 500 provides procedures for the pre-trial preservation of testimony of those witnesses who may be unavailable to testify for trial or other proceedings or where, due to exceptional circumstances, it is in the interests of justice to preserve the witness' testimony. Consistent with the Task Force's recommendation, the Advisory Council suggested to the Court that the Rule 500 Comment be revised to further define the phrase ''exceptional circumstances'' to include the circumstances where the victim is an elder, is frail, or demonstrates the symptoms of mental infirmity or dementia, creating the risk that they will not be able to testify in the future. The Advisory Council also suggested that persons 60 or older be presumed to be elders for purposes of preserving testimony.

 The Committee considered that the language of the Comment already is broad enough to cover the situation where a victim/witness would be unavailable to testify due to age-related incapacity such as frailty or dementia. However, the Committee concluded that it would be helpful to explicitly state in the Comment that these conditions are contemplated by the rule. Therefore, the language of the third paragraph of the Comment would be revised as follows:

''May be unavailable,'' as used in paragraph (A), is intended to include situations in which the court has reason to believe that the witness will be unable to be present or to testify at trial or other proceedings, such as when the witness is dying, or will be out of the jurisdiction and therefore cannot be effectively served with a subpoena, or is elderly, frail or demonstrating symptoms of mental infirmity or dementia, or may become incompetent to testify for any other legally sufficient reason.

 The proposed revision also added the word ''other'' before ''legally sufficient reason'' to the final phrase of the paragraph since mental infirmity and dementia are also ''legally sufficient reasons'' for determining unavailability. The Committee reviewed the suggestion that there be a presumption for that those ''age 60 and over'' fall within the definition of ''elderly'' for purposes of constituting ''exceptional circumstances,'' and concluded such a presumption was unnecessary under the criminal rules. It appears that the Advisory Council, in making this suggestion, was attempting to maintain uniformity of its definition of ''elderly'' with the various state and federal statutes that provide for assistance to the elderly. However, the purpose of the definition under those statutes, e.g. for the provision of services or prohibition of age-based discrimination, is qualitatively different from the purpose of Rule 500 which seeks to provide for the recording of testimony of a witness who would be unavailable at trial. The Committee concluded that this particular age-based presumption was not consistent with a general competency to testify.

 The Task Force also recommended that ''Rule 504 (Contents of the Complaint) be amended to include either the date of birth of the victim, or including a check box (to be marked) that identified the individual as an elder (age 60 or over).'' The rationale for this change was that this information would be used to obtain statistics of the incidents of elder abuse occurring in the Commonwealth, ''and thus further efforts to address the extent of physical and financial abuse against elderly victims.'' The Committee, after considering the recommended change, agreed not to propose this recommendation. The Committee noted that the purpose of the criminal complaint is as a charging document intended to put the defendant on notice of the charges against him or her and is not a suitable a means of gathering statistical information which could be obtained by other methods. Furthermore, the members expressed concern about the potential for identity theft from including this requirement in a public document. While perhaps not as dangerous as requiring a Social Security Number, the date of birth is a critical personal identifier and requiring it to be placed on a public record is not advisable. It should be noted that nothing in this proposal is intended to preclude the inclusion of a victim age in the complaint's description of the acts of the defendant when the victim's age is an element of the offense charged.

[Pa.B. Doc. No. 15-1311. Filed for public inspection July 17, 2015, 9:00 a.m.]

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¹  See Elder Law Task Force Report, http://www.pacourts.us/courts/supreme-court/committees/supreme-court-boards/elder-law-task-force.

²  See Recommendation 36, Elder Task Force Report, page 236.

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