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PA Bulletin, Doc. No. 03-2444


[234 PA. CODE CH. 5]

Modification of Bail By Issuing Authority Prior to Preliminary Hearing

[33 Pa.B. 6410]

   The Criminal Procedural Rules Committee is planning to recommend that the Supreme Court of Pennsylvania amend Rule 529 (Modification of Bail Order Prior to Verdict) to provide that an issuing authority may modify a bail order at anytime following the preliminary arraignment through the preliminary hearing. 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 rule changes 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, Chief Staff Counsel
Supreme Court of Pennsylvania
Criminal Procedural Rules Committee
5035 Ritter Road, Suite 800
Mechanicsburg, PA 17055
fax: (717) 795-2106

no later than Friday, January 23, 2004.

By the Criminal Procedural Rules Committee


Annex A



PART C(1).  Release Procedures

Rule 529.  Modification of Bail Order Prior to Verdict.

   (A)  [A bail order may be modified by an issuing authority at any time before the preliminary hearing upon the request of the defendant with the consent of an attorney for the Commonwealth, or at the preliminary hearing upon the request of either party.] The proper issuing authority, upon request of the defendant or the attorney for the Commonwealth, or upon the issuing authority's own motion, and after notice to the defendant and the attorney for the Commonwealth and an opportunity to be heard, may modify a bail order at anytime before the preliminary hearing.

   (B)  A bail order may be modified by an issuing authority at the preliminary hearing.

   (C)  The existing bail order may be modified by a judge of the court of common pleas:

*      *      *      *      *

   [(C)] (D)  * * *

*      *      *      *      *

   [(D)] (E)  * * *


*      *      *      *      *

   The procedures for modification of a bail order by the issuing authority were amended in 2004 to permit the issuing authority to modify bail at any time before the preliminary hearing on the issuing authority's own motion or request of a party when, for example, new information becomes available concerning the defendant that would affect the issuing authority's decision concerning the type of release and the conditions of release imposed at the preliminary arraignment.

   Pursuant to this rule, the motion, notice, and hearing requirements in paragraphs [(B)](C)(1) and [(C)](D)(2) must be followed in all cases before a common pleas court judge may modify a bail order unless the modification is made on the record in open court either when all parties are present at a pretrial hearing--such as a suppression hearing--or during trial.

*      *      *      *      *

   Official Note:  Former Rule 4008 adopted July 23, 1973, effective 60 days hence; rescinded September 13, 1995, effective January 1, 1996, and replaced by Rule [530] 4010. Present Rule 4008 adopted September 13, 1995, effective January 1, 1996. The January 1, 1996 effective dates extended to April 1, 1996; the April 1, 1996 effective dates extended to July 1, 1996; renumbered Rule 529 and amended March 1, 2000, effective April 1, 2001; amended ____ , 2004, effective ____ , 2004.

Committee Explanatory Reports:

*      *      *      *      *

   Report explaining the proposed changes concerning ''pre-preliminary hearing'' modification of bail by the issuing authority published at 33 Pa.B. 6410 (December 27, 2003).


Amendments to Pa.R.Crim.P. 529



   The Criminal Procedural Rules Committee is proposing the Court amend Rule 529 (Modification of Bail Order Prior to Verdict) to provide that an issuing authority may modify a bail order at anytime following the preliminary arraignment through the preliminary hearing. These changes address what the Committee learned is a systemic problem caused by the unavailability at the preliminary arraignment of the relevant information an issuing authority must have in making a bail decision and determining the appropriate type of release.

   The Committee's initial discussions were prompted by correspondence and inquiries we received from several individuals concerning a tragic case in which a police officer, during a routine traffic stop, was shot and killed by an individual who had a criminal record, was on parole, and who had been released on $1,000/10% bail in a ''recent'' weapons case because the district justice setting the bail in that case was not provided with the defendant's criminal history nor did the district justice have any other access to the defendant's criminal history. One of the correspondents, Mike Schwoyer, Chief Counsel for the House Judiciary Committee, asked the Committee to consider a modification of the complaint form to provide a check off box for the police to indicate that they had done a criminal history check and had provided/would provide the information to the district justice. During the Committee's consideration of Mr. Schwoyer's suggestion, we also explored the possibility of requiring the bail authority to complete a form indicating the release criteria considered in determining the type of release under Rule 523. During our discussion of these two possible rule changes, the Committee agreed the problem that needed to be addressed is the unavailability of adequate bail-related information at the preliminary arraignment when the issuing authority is making a bail determination and that simply requiring a box be checked or the completion of a form would not resolve the problem. We also thought the rules cannot mandate which agency is to provide the relevant bail information at the preliminary arraignment, and, therefore, considered other means of addressing this problem. We agreed providing the issuing authority the opportunity to modify bail following the preliminary arraignment and before the preliminary hearing, when for example, information that could affect the defendant's bail status becomes known to the issuing authority, would provide a reasonable, equitable resolution to the problem. Because Rule 529(A) only permits an issuing authority to modify bail between the preliminary arraignment and the preliminary hearing when there is a request from the defendant and the consent of an attorney for the Commonwealth, the Committee turned its attention to modifying Rule 529.

   The Committee reviewed the history of Rule 5291 and found that when the rule originally was adopted in 1973 it provided, ''Bail may be modified by the issuing authority at the preliminary hearing when counsel for either party makes known to him facts relating to the standards set forth in Rule 4004 (current Rule 523) which were not known or which were misrepresented when bail was originally set, or which have changed since the setting of bail.''2 In spite of the literal wording of the rule, however, district justices were resetting bail at a time before the preliminary hearing, which raised concerns of ''district justice shopping'' and that the ''non-sanctioned practice'' provided a means for collusion between a bondsman and a district justice or for a bondsman to obtain a bail reduction unbeknownst to a defendant and charge a premium based on the higher bail amount. This non-compliance with the rules and the concerns about the abuses led to the 1983 amendment that prohibited the pre-preliminary hearing modification of bail by an issuing authority except when requested by the defendant with the consent of the district attorney. See the Committee Explanatory Report 13 Pa.B. 125 (January 8, 1983).

   In discussing the rule history, the Committee noted there existed, and exist today, legitimate reasons why an issuing authority might want to modify bail between the preliminary arraignment and preliminary hearing: for example, there often are cases in which a defendant, who would be considered ''a good bail risk,'' has a high bail set because of the lack of adequate information about the defendant, or a ''duty'' magistrate who is not familiar with the defendant sets a high monetary condition of bail and the ''proper'' issuing authority who knows the defendant would have set a lower monetary condition of bail. In these situations, the present ''defendant request/Commonwealth consent'' requirement is an inadequate provision for allowing the issuing authority to modify the amount of bail because it results in unnecessary detention until 1) the defendant makes the request to modify bail and the attorney for the Commonwealth gives consent, 2) a motion is heard in the court of common pleas, or 3) the time of the preliminary hearing. Similarly, there may be equally important and compelling reasons the issuing authority would want to increase the amount of bail, such as in the case that triggered the Committee's discussions.

   In view of the rule's history, the procedures in other jurisdictions that permit their courts to modify bail ''on their own motion,'' the problems concerning the lack of opportunity for the issuing authorities to modify bail, and the Committee's position that the issuing authorities should be able to modify bail during the time period between the preliminary arraignment and the preliminary hearing, the Committee agreed to propose an amendment to Rule 529.

Discussion of Proposed Changes to Rule 529

   The Committee agreed that to emphasize the changes, the new provision should be set forth as a separate paragraph, new paragraph (A), that would apply to the time period subsequent to the preliminary arraignment and prior to the preliminary hearing.

   The Committee considered including in the proposal an ''additional information'' requirement; that is, the issuing authority's authority to modify the bail before the preliminary arraignment would be limited to when he or she receives additional information about the defendant that would affect the defendant's bail status. And we contemplated that there are a variety of ways in which the additional information could be made known to the issuing authority: from the Commonwealth, the defense attorney, a third party, the court system, other judges, or other people in the system, electronically, or from the newspapers. Upon reconsideration, however, the Committee agreed such a limitation should not be proposed because it would create other problems such as when bail is set by a ''duty'' or ''on-call'' issuing authority who does not know the defendant, but when the ''proper issuing authority'' is made aware of the case, he or she could modify bail accordingly. We also agreed that there should be the requirement of notice to the defendant3 and the attorney for the Commonwealth, and provide them with an opportunity to be heard. In this way, a formal motion procedure, which could lead to unnecessary delays, would not be required, but the ''opportunity to be heard'' would allow the defendant or attorney for the Commonwealth who opposes the change to ''state his or her reasons.'' Thus under this new procedure the modification issue could be originated by the defendant, or the attorney for the Commonwealth, or even the issuing authority, as long as there is notice to the other parties, and an opportunity for them to be heard. Although the specific consent requirement would be deleted as no longer necessary, new paragraph (A) encompasses the consent situation. In addition, a new paragraph would be added to the Comment that would further explain the new procedures modify existing practice to permit the issuing authority to modify bail before the preliminary hearing upon the issuing authority's ''own motion'' or the request of one of the parties.

   New paragraph (B) would retain, as a separate provision, the current paragraph (A) provision that a bail order may be modified by the issuing authority at the preliminary hearing. However, the requirement that modification occur ''upon the request of either party'' would be deleted as no longer necessary. The Committee believes the issuing authority has the authority to modify bail without the request being made by a party.

[Pa.B. Doc. No. 03-2444. Filed for public inspection December 26, 2003, 9:00 a.m.]


1  Rule 529 originally was numbered Rule 4005, was renumbered Rule 4008 in 1995, and renumbered Rule 529 in 2000.

2  The Committee also reviewed statutes and rules in other jurisdictions to find out whether they address similar procedures in their criminal procedures. We found that some jurisdictions allow the court sua sponte to modify bail, see, e.g., Arizona Rule of Criminal Procedure 7.4(b) and Ohio Rule of Criminal Procedure 46(E), but that most jurisdictions require a motion by the defendant or prosecuting attorney, see, e.g., Connecticut Rule of Criminal Procedure 38-14 and New Jersey Rule of Criminal Procedure 46.1(b)(2).

3  We did not add a requirement for the attorney for the defendant to receive notice because oftentimes at this stage of the proceedings, the defendant does not have counsel.

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