Title 234--RULES OF CRIMINAL PROCEDURE
[234 PA. CODE CH. 1]
Order Promulgating New Rule 118; No. 295 Criminal Procedural Rules; Doc. No. 2
[33 Pa.B. 4287]
The Criminal Procedural Rules Committee has prepared a Final Report explaining new Rule 118. The new rule provides the procedures generally authorizing a court or issuing authority to use two-way simultaneous audio-visual communication, which is a form of advanced communication technology (ACT), in criminal proceedings, and makes it clear there are certain proceedings in which the use of two-way simultaneous audio-visual communication would not be permitted. The Final Report follows the Court's Order.
Now, this 11th day of August, 2003, upon the recommendation of the Criminal Procedural Rules Committee; the proposal having been published before adoption at 32 Pa.B. 2197 (May 4, 2002), and in the Atlantic Reporter (Second Series Advance Sheets, Vol. 795), 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 118 is promulgated in the following form.
This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective September 1, 2003.
TITLE 234. RULES OF CRIMINAL PROCEDURE
CHAPTER 1. SCOPE OF RULES, CONSTRUCTION AND DEFINITIONS, LOCAL RULES
PART A. Business of the Courts
Rule 118. Use of Two-Way Simultaneous Audio-Visual Communication in Criminal Proceedings.
(A) The court or issuing authority may use two-way simultaneous audio-visual communication at any criminal proceeding except:
(1) preliminary hearings;
(3) sentencing hearings;
(4) parole, probation, and intermediate punishment revocation hearings; and
(5) any proceeding in which the defendant has a constitutional or statutory right to be physically present.
(B) The defendant may consent to any proceeding being conducted using two-way simultaneous audio-visual communication.
(C) When counsel for the defendant is present, the defendant must be permitted to communicate fully and confidentially with defense counsel immediately prior to and during the proceeding.
This rule was adopted in 2003 to make it clear that unless the case comes within one of the exceptions in paragraph (A), the court or issuing authority may use two-way simultaneous audio-visual communication in any criminal proceeding. Two-way simultaneous audio-visual communication is a type of advanced communication technology as defined in Rule 103.
Nothing in this rule is intended to limit any right of a defendant to waive his or her presence at a criminal proceeding in the same manner as the defendant may waive other rights. See, e.g., Rule 602 Comment. Negotiated guilty pleas when the defendant has agreed to the sentence and probation revocation hearings are examples of hearings in which the defendant's consent to proceed using two-way simultaneous audio-visual communication would be required. Hearings on post-sentence motions, bail hearings, extradition hearings, and Gagnon I hearings are examples of proceedings that may be conducted using two-way simultaneous audio-visual communication without the defendant's consent. It is expected the court or issuing authority would conduct a colloquy for the defendant's consent when the defendant's constitutional right to be physically present is implicated.
Within the meaning of this rule, counsel is present when physically with the defendant or with the judicial officer conducting the criminal proceeding.
This rule does not apply to preliminary arraignments (Rule 540), arraignments (Rule 571), or to search warrant (Rule 203) and arrest warrant (Chapter 5 Part B(3)) procedures.
This rule is not intended to preclude the use of advanced communication technology for the preservation of testimony as permitted by Rules 500 and 501.
See Rule 542 for the procedures governing preliminary hearings.
See Chapter 6 for the procedures governing trials.
See Chapter 7 for the procedures governing sentencing hearings.
See Rule 708 for the procedures governing revocation of probation, intermediate punishment, and parole.
The paragraph (A)(4) reference to revocation hearings addresses Gagnon II-type probation (Gagnon v. Scarpelli, 411 U.S. 778 (1973)) and parole (Morrissey v. Brewer, 408 U.S. 471 (1972)) revocation hearings, and is not intended to prohibit the use of two-way simultaneous audio-visual communication in hearings to determine probable cause (Gagnon I).
Official Note: New Rule 118 adopted August 7, 2003, effective September 1, 2003.
Committee Explanatory Reports:
Final Report explaining new Rule 118 published with the Court's Order at 33 Pa.B. 4287 (August 30, 2003).
New Pa.R.Crim.P. 118
Use of Two-Way Simultaneous Audio-Visual Communication in Criminal Proceedings
On August 7, 2003, effective September 1, 2003, upon the recommendation of the Criminal Procedural Rules Committee, the Court promulgated new Rule 118 (Use of Two-Way Simultaneous Audio-Visual Communication in Criminal Proceedings). The new rule provides the procedures generally authorizing a court or issuing authority to use two-way simultaneous audio-visual communication, which is a form of advanced communication technology (ACT),2 in criminal proceedings, and makes it clear there are certain proceedings in which the use of two-way simultaneous audio-visual communication would not be permitted.
Over the past several years, the Committee has been monitoring the use of ACT in criminal proceedings in Pennsylvania, and the need to include in the Criminal Rules provisions that specifically permit its expanding use as well as specifically limit its use in certain criminal proceedings. In developing its proposals concerning ACT, the Committee has focused on its belief that the implementation of provisions for the use of ACT in criminal proceedings furthers the goals of 1) achieving statewide uniform procedures in criminal proceedings, 2) providing quick and efficient administration of justice, and 3) bringing convenience to the parties.3 During the development of these proposals, through various communications to the Committee from AOPC Staff, Common Pleas Court Management System staff (CPCMS), and members of the bench and bar, we became aware that the uses of ACT are expanding rapidly throughout Pennsylvania. To confirm these ''reports'' and to learn of the ways ACT is being used in the judicial districts, the Committee conducted a survey of the president judges concerning their uses of ACT,4 and learned that, in those judicial districts that have ACT capabilities, its uses are rapidly expanding to include all types of criminal proceedings. Several other president judges who perceive a need to use ACT are 1) reluctant to invest the resources in ACT until the Criminal Rules provide guidance for its use, or 2) not using ACT because of concerns about the ''face to face'' constitutional provision.5 In view of the survey responses and the general communications concerning when ACT should be used in criminal proceedings, the Committee agreed that it is imperative to have a general rule governing the use of ACT in all criminal proceedings.6
The Committee, in favor of encouraging the use of ACT generally, and recognizing the need to pursue a general rule, was concerned on the one hand about the implications of having certain criminal proceedings, including, inter alia, preliminary hearings, trials, and sentencing hearings, conducted by using ACT, and concerned on the other hand about protecting the defendant's rights, including the defendant's participation in the defense of his or her case and access to defense counsel. The Committee agreed that, when the criminal proceeding is one that requires rigid protection of the defendant's rights and the integrity and fairness of the judicial process, any rules addressing this type of procedure must be one capable of providing two-way simultaneous audio-visual communication, and allow for confidential communications between the defendant and defendant's counsel.
The Committee also agreed the scope of new Rule 118 should be broad enough to cover all types of hearings. In addition, when developing the procedures for the new rule, the Committee agreed that the proposed new rule should preserve the status quo, i.e., the new rule should not create nor abridge existing rights of the defendant to appear at a criminal proceeding; rather the new rule merely should be permissive of the use of two-way simultaneous audio-visual communication in criminal proceedings. The Committee recognized that the rule also should not alter a defendant's right to effectively waive his or her right to be present at a hearing, nor address whether the parties must agree to its use. Finally, the Committee agreed that although the scope of the new rule should be broad, the rule should be clear that in those criminal proceedings in which the use of two-way simultaneous audio-visual communication would not be appropriate, no other form of ACT may be used to conduct the proceeding.
C. Discussion of New Rule 118
New Rule 118 is divided into three paragraphs. Paragraph (A) provides the general rule that a court or issuing authority may use two-way simultaneous audio-visual communication at any criminal proceeding. Paragraph (A) also provides several enumerated exceptions to the general rule. These exceptions, which are the proceedings the Committee expressed serious concerns about the defendants' rights to be physically present, are (1) preliminary hearings, (2) trials, (3) sentencing hearings, (4) parole, probation, and intermediate punishment revocation hearings, and (5) any proceeding in which the defendant has a constitutional or statutory right to be physically present.
Following the Committee's publication of our proposal for new Rule 118, some correspondents raised the question whether the new rule would permit a defendant to consent to having any proceeding, including those specifically listed as an exception in paragraph (A), conducted by using two-way simultaneous audio-visual communication. The Committee agreed with this point concerning the defendant's consent raised in the correspondence. Accordingly, paragraph (B) permits the defendant to consent to having any criminal proceeding conducted using two-way simultaneous audio-visual communication, including the proceedings in paragraph (A). The types of proceedings that require the defendant's consent are further clarified in the Comment.
Paragraph (C) makes it clear that when counsel for the defendant is present for the criminal proceeding, the defendant must be permitted to communicate fully and confidentially with him or her immediately prior to and during the proceeding. This language is consistent with the language included in the earlier ACT-related rule changes and recognizes the importance of the defendant's access to defense counsel, and the confidentiality of communications between the defendant and defense counsel, and allays our concerns about the defendant's ability to participate in his or her defense.
The Comment also:
1) highlights that the criminal proceedings contemplated by the rule require two-way simultaneous audio-visual communication;
2) makes it clear that the new rule is not intended to alter the right of a defendant to waive his or her presence at a criminal proceeding and provides examples concerning when the defendant's consent to having a criminal proceeding conducted using two-way simultaneous audio-visual communication is required;
3) explains that the ''counsel for the defendant is present'' requirement is satisfied when counsel is physically with the defendant or with the judicial officer presiding over the criminal proceeding;
4) explains that the rule does not apply to preliminary arraignments and arraignments, or to search warrant and arrest warrant procedures, which are addressed in other rules;
5) makes it clear that the rule is not intended to preclude the use of ACT for the preservation of testimony as permitted by Rules 500 and 501; and
6) explains that the paragraph (A)(4) exception for revocation hearings addresses Gagnon II-type hearings, in which there may be a sentencing for a violation of the defendant's probation or parole, and not the Gagnon I-type hearings in which there only is a probable cause finding that a violation has occurred.
[Pa.B. Doc. No. 03-1689. Filed for public inspection August 29, 2003, 9:00 a.m.]
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 See Rule 103 (Definitions).
3 The Committee's first published proposals concerned providing the procedures for ACT in, inter alia, the rules governing preliminary arraignments, arraignments, search warrants, and arrest warrants. The Court adopted these rule changes on May 10, 2002, effective September 1, 2002. See 32 Pa.B. 2582 (May 25, 2002).
4 We received 41 responses to our survey: 17 judicial districts reported that hey experimenting with ACT; 16 would like to begin to use ACT in criminal proceedings; and 8 report no plans nor needs for using ACT. Some judicial districts use ACT for a large number of criminal cases and a panoply of criminal proceedings In many instances, funding was reported to be a problem, but the anticipation is that the judicial districts would achieve ACT capabilities and use it in the same way as the judicial districts already using ACT.
5 See PA. CONST. art. I, § 9.
6 We agreed the new rule should be Rule 118 in the general provisions chapter because of its application. We published the proposal at 32 Pa.B. 2197 (May 4, 2002).
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