135 Order revising the comment to rule 621 of the rules of criminal procedure; no. 407 criminal procedural rules doc.

Title 234—RULES OF CRIMINAL PROCEDURE

[ 234 PA. CODE CH. 6 ]

Order Revising the Comment to Rule 621 of the Rules of Criminal Procedure; No. 407 Criminal Procedural Rules Doc.

[42 Pa.B. 545]
[Saturday, January 28, 2012]

Order

Per Curiam

 And Now, this 9th day of January, 2012, upon the recommendation of the Criminal Procedural Rules Committee; the proposal having been submitted without publication pursuant to Pa.R.J.A. 103(a)(3) in the interests of 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 revision of the Comment to Pennsylvania Rule of Criminal Procedure 621 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 February 1, 2012.

Annex A

TITLE 234. RULES OF CRIMINAL PROCEDURE

CHAPTER 6. TRIAL PROCEDURES IN COURT CASES

PART B. Non-Jury Procedures

Rule 621. Procedure When Jury Trial is Waived.

*  *  *  *  *

Comment

 The 1999 amendment conforms this rule to the 1998 amendment to article I, § 6 of the Pennsylvania Constitution providing that ''the Commonwealth shall have the same right to trial by jury as does the accused.''

 Paragraph (B) was amended in 1999 to make it clear that the defendant, the attorney for the Commonwealth, or the judge may unilaterally withdraw the jury trial waiver or the approval at any time before the commencement of trial. Concerning the time when trial commences, see Commonwealth v. Dowling, 598 Pa. 611, 619-620, 959 A.2d 910, 915 (2008) (holding that ''trial commences for purposes of Pa.R.Crim.P. 621(B), when a court has begun to hear motions which have been reserved for the time of trial; when oral arguments have commenced; or when some other such substantive first step in the trial has begun''). After commencement of trial, Rule 605 governs.

 Paragraph (c) was deleted in 1999 to permit the defendant and the attorney for the Commonwealth to waive a jury trial with the court's approval, under Rule 620, even after the withdrawal of a previous jury trial waiver.

 When there are co-defendants, withdrawal of a waiver, or withdrawal of the judge's approval, with respect to one or more defendants does not preclude a waiver and non-jury trial for other defendants.

 Official Note: Rule 1102 adopted January 24, 1968, effective August 1, 1968; amended April 16, 1999, effective July 1, 1999; renumbered Rule 621 and Comment revised March 1, 2000, effective April 1, 2001; Comment revised January 9, 2012, effective February 1, 2012.

Committee Explanatory Reports:

 Final Report explaining the April 16, 1999 amendments concerning the 1998 Constitutional amendment published with the Court's Order at 29 Pa.B. 2290 (May 1, 1999).

 Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court's Order at 30 Pa.B. [1477] 1478 (March 18, 2000).

 Final Report explaining the January 9, 2012 Comment revision adding a citation to Commonwealth v. Dowling published with the Court's Order at 42 Pa.B. 546 (January 28, 2012).

FINAL REPORT¹

Revision of the Pa.R.Crim.P. 621 Comment

Timeliness of Request to Withdraw Waiver
of Jury Trial

 On January 9, 2012, effective February 1, 2012, upon the recommendation of the Criminal Procedural Rules Committee, the Court approved the revision of the Comment to Pa.R.Cim.P. 621 (Procedure When Jury Trial is Waived) that adds a citation to Commonwealth v. Dowling, 598 Pa. 611, 959 A.2d 910 (2008) concerning the period within which a defendant may withdraw a waiver of a jury trial. At the request of the Court, the Committee undertook a review of the provisions of Rule 621(B) with regard to the defendant's right to withdraw a waiver of a jury trial at any time before the commencement of trial in light of the different approaches to withdrawal of jury waivers that other jurisdictions have adopted.

 The Committee reviewed the case law and rules in other jurisdictions. As noted in Dowling, a number of other jurisdictions permit withdrawals of jury trial waivers in the discretion of the trial judge. The Committee found numerous procedural variations in how the discretion is exercised and about what is the burden of proof. The Committee also noted that, even though permission to withdraw the waiver is left to the discretion of the trial judge, the commencement of trial or the taking of evidence are the time limits within which the request to withdraw the waiver must be made.

 During the Committee's discussion various views were articulated, with some members suggesting that permitting withdrawal in the judge's discretion makes sense because the judge is in the best position to know whether and when a withdrawal should be permitted. Other members suggested that current Pennsylvania practice permitting the withdrawal of a waiver of a jury trial is essential to protect the defendant's rights. They argued that the bright line limitation on when a withdrawal may be made in current Rule 621(B) adequately safeguards the defendant and promotes judicial economy, and with the clarifications in Dowling, there will be fewer challenges about when a request to withdraw a waiver of the jury trial should be granted. In addition, there was concern that changing to a discretionary system potentially could result in more issues being raised with the courts concerning the judge's exercise of discretion rather than reducing the number of challenges.

 The Committee ultimately concluded that no changes in the procedures are necessary. However, the members agreed that the Rule 621 Comment should be revised to include a citation to the Dowling case and the Court's definition of ''commencement of trial.''² This revision will provide adequate notice to the bench and bar of the definitional clarification, and is consistent with the Court's stated goal of ensuring that the exercise of the right to withdraw a jury trial waiver is ''not used to frustrate the administration of justice by delaying the proceedings for tactical gain.'' Id. at 620, 959 A.2d at 915. Accordingly, the Rule 621 Comment has been revised with the addition of the following language:

Concerning the time when trial commences, see Commonwealth v. Dowling, 598 Pa. 611, 619-620, 959 A.2d 910, 915 (2008) (holding that ''trial commences for purposes of Pa.R.Crim.P. 621(B), when a court has begun to hear motions which have been reserved for the time of trial; when oral arguments have commenced; or when some other such substantive first step in the trial has begun'').

[Pa.B. Doc. No. 12-135. Filed for public inspection January 27, 2012, 9:00 a.m.]

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