Title 234—RULES OF CRIMINAL PROCEDURE
[ 234 PA. CODE CH. 5 ]
Order Amending Rule 556 of the Rules of Criminal Procedure; No. 465 Criminal Procedural Rules Doc.
[45 Pa.B. 5785]
[Saturday, September 26, 2015]
And Now, this 8th day of September, 2015, upon the recommendation of the Criminal Procedural Rules Committee; the proposal having been submitted without publication pursuant to Pa.R.J.A. No. 103(a)(3) in the interests of justice and efficient administration, 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 amendment of Pennsylvania Rule of Criminal Procedure 556 is approved in the following form.
This Order shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective November 1, 2015.
TITLE 234. RULES OF CRIMINAL PROCEDURE
CHAPTER 5. PRETRIAL PROCEDURES IN
PART E. Indicting Grand Jury
Rule 556. Indicting Grand Jury.
(A) 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.
(B) Any court of common pleas seeking to resume the use of indicting grand juries pursuant to these rules shall petition the Supreme Court of Pennsylvania in the following form:
(1) The petition shall identify the petitioner, who shall be either the president judge or a designee, and the judicial district. If the petition is seeking permission to resume the use of indicting grand juries in a two-county judicial district, and the indicting grand jury is sought for only one county, that county shall be identified in the petition. The president judge's designee shall be a member of the court of common pleas of the judicial district.
(2) The petition shall aver that the petitioner has reviewed the district attorney's certificate required under paragraphs (B)(4) and (5) and the petitioner agrees with the averments contained therein.
(3) An original and 2 copies of the petition shall be filed, and shall bear an original signature of the petitioner.
(4) There shall be appended to the petition a certificate from the district attorney for the judicial district or, in the case of a two-county judicial district, a certificate from the district attorney or district attorneys for the county or counties within the judicial district.
(5) The district attorney's certificate shall contain:
(a) the name and county of the district attorney;
(b) an averment that witness intimidation has occurred, is occurring, or is likely to occur in the judicial district or, in the case of a two-county district where an indicting grand jury is sought for only one county, the county;
(c) An averment that the district attorney believes that an indicting grand jury will remedy the problem of witness intimidation; and
(d) the original signature of the district attorney.
This rule was adopted in 2012 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.
The Supreme Court, by Order issued with the promulgation of the new Rules of Criminal Procedure governing the indicting grand jury, requires that each of the judicial districts must petition the Court for permission to resume using the indicting grand jury, but only as provided in these rules. By further Order of the Supreme Court, the form and contents of the petition were established. See 43 Pa.B. 1706 (March 30, 2013). This rule was amended in 2015 to include the form and contents of the petition required to resume indicting grand juries as established by the Court's Order.
The rules in Chapter 5 Part E apply only to the indicting grand jury and do not apply to any county, regional, or statewide investigating grand jury.
Official Note: New Rule 556 adopted June 21, 2012, effective in 180 days; amended September 8, 2015, effective November 1, 2015.
Committee Explanatory Reports:
Final Report explaining the new rule published with the Court's Order at 42 Pa.B. 4153 (July 7, 2012).
Final Report explaining the September 8, 2015 amendment regarding the content of the petition to resume using indicting grand juries published with the Court's Order at 45 Pa.B. 5786 (September 26, 2015).
Amendment of Pa.R.Crim.P. 556
Petitions Seeking Leave to Resume
Indicting Grand Juries
On September 8, 2015, effective November 1, 2015, upon the recommendation of the Criminal Procedural Rules Committee, the Court approved the amendment of Rule of Criminal Procedure 556 (Indicting Grand Jury) to include the required contents of the petition seeking leave to resume the use of indicting grand juries. The requirement to petition for the resumption of indicting grand juries was established in the Court's Order adopting the new indicting grand jury rules.2 The contents of the petition were established by a later Order of the Court issued on March 12, 2013.3
The reason for this requirement was the manner in which the use of the indictment was originally supplanted by the use of criminal informations. The 1973 amendment of Article I, § 10 of the Pennsylvania Constitution and the subsequent enabling legislation permitted, but did not mandate, the courts of common pleas to proceed by information instead of by indictment, but only with the permission of the Court. The Court then mandated that each court of common pleas petition for the Court's permission to proceed in the use of informations. The last court of common pleas received the Court's approval to proceed by information in 1991 and, effective in 1993, the Court rescinded the indicting grand jury rules as no longer necessary. The Court's approval of petitions to resume indicting grand juries merely reverses these earlier actions.
After two years of experience with the new indicting grand jury rules, the Committee concluded that it would be helpful to provide in the indicting grand jury rules, rather than just the Court's order, directions on how to go about doing so to courts seeking to resume indicting grand juries. Therefore, a new paragraph (B) has been added to Rule 556 listing the requirements for the contents of the petition. These requirements are taken from the Court's March 12, 2013 Order.
The amendment also clarifies the process for the resumption of the use of indicting grand juries. The Court's Orders used the phrase, ''permission to summon an indicting grand jury'' that suggests that a petition might need to be filed each time a grand jury has been summoned. Such an interpretation would be cumbersome and contrary to the intent of the current indicting grand jury rules when originally adopted. The existing text of the Rule 556 Comment uses the terminology of a petition ''to resume using the indicting grand jury.'' The intention for the use of this terminology was that a court of common pleas would only petition the Court once for the initial permission to resume the use of indicting grand juries.
Additionally, the amendment retains the terminology of the Court's Orders that the certification must be made by ''the district attorney'' rather than ''the attorney for the Commonwealth'' since the procedure under this rule would encompass the practice within judicial district as a whole rather than being applicable to an individual case.
[Pa.B. Doc. No. 15-1720. Filed for public inspection September 25, 2015, 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 42 Pa.B. 4140 (July 7, 2012).
3 See 43 Pa.B. 1706 (March 30, 2013).
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