818 Administration of the oath to investigating grand jury witnesses

[234 PA. CODE CH. 2]

Administration of the Oath to Investigating Grand Jury Witnesses

[33 Pa.B. 2163]

   The Criminal Procedural Rules Committee is planning to recommend that the Supreme Court of Pennsylvania amend Pa.R.Crim.P. Rule 227 (Administering Oath to Witness) to permit a court representative, who has the authority to administer oaths, to administer the oath to all witnesses who are scheduled to testify before an investigating grand jury, except those witnesses who are required to receive constitutional warnings. For these witnesses, the warnings and the oath must be administered by the supervising judge. 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 227 amendments 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: [phone]
e-mail: [e-mail]

no later than Friday, June 6, 2003.

By the Criminal Procedural Rules Committee

JOHN J. DRISCOLL,   
Chair

Annex A

TITLE 234.  RULES OF CRIMINAL PROCEDURE

CHAPTER 2.  INVESTIGATIONS

PART B(1).  Investigating Grand Juries

Rule 227.  Administering Oath to Witness.

   Each witness to be heard by the investigating grand jury shall be sworn [by the court] before testifying. The witness may elect to be sworn in camera or in open court.

Comment

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   When it is necessary to give constitutional warnings to a witness, the warnings and the oath must be administered by the court. As to warnings that the court may have to give to the witness when the witness is sworn, see, e.g., Commonwealth v. McCloskey, 277 A.2d 764 (Pa. 1971).

   Offficial Note: Rule 259 adopted June 26, 1978, effective January 9, 1979; renumbered Rule 227 and Comment revised March 1, 2000, effective April 1, 2001; amended         , 2003, effective         , 2003.

Committee Explanatory Reports:

*      *      *      *      *

   Report explaining the proposed amendments to concerning administration of the oath published at 33 Pa.B. 2163 (May 3, 2003).

REPORT

Proposed Amendments to Pa.R.Crim.P. 227

ADMINISTRATION OF THE OATH TO INVESTIGATING GRAND JURY WITNESSES

   The Criminal Procedural Rules Committee is proposing changes to Rule 227 (Administering Oath to Witness) that will make the rule clear that (1) when it is necessary to give constitutional warnings to a witness who will testify in an investigating grand jury proceeding, the warnings and the oath must be administered by the supervising judge, and (2) for all other witnesses in the investigating grand jury proceeding, a court representative, who is authorized to administer oaths, is permitted to administer the oath. These changes are intended to protect the rights of those witnesses who under the law are to be afforded constitutional warnings prior to testifying before the investigating grand jury, and to facilitate overall the investigating grand jury proceedings by allowing another court official to administer the oath.

   As part of the Committee's ongoing general review of the Criminal Rules, we recently reviewed Rule 227. Several members opined, in view of the manner in which an investigating grand jury proceeding is conducted, that the provision in the rule ''by the court'' may be archaic, impractical, and unnecessary.¹ In determining whether to propose changes to Rule 227, the Committee reviewed the Committee's rule history. When the Committee originally proposed Rule 227 in 1978, the impetus for the requirement that the court administer the oath to witnesses were concerns of the Committee about the warnings and instructions which should be given to a witness prior to testifying. The members relied on Commonwealth v. McCloskey, 277 A.2d 764 (Pa. 1971), in which the Supreme Court stated, inter alia, that ''the proper procedure is for the court supervising the investigating grand jury to instruct the witness when administering the oath'' about the right to counsel, at 777, as the basis for including the ''sworn by the court'' language.

   In view of this history, the Committee concluded the ''sworn by the court'' requirement only applies to witnesses who also must be given warnings at the time the oath is administered. The Committee also noted the witnesses who do not require constitutional warnings in most cases are law enforcement officers or other individuals involved in the investigation, and to require them to appear before the supervising judge to be sworn, which is frequently hours before the witness is to testify, is inefficient, an inconvenience to the law enforcement officers, an economic and staffing burden on their departments, and serves no purpose. In view of these considerations and the rule history, the members agreed changing the rule to allow any court official who is authorized to administer oaths to administer the oath to all other investigating grand jury witnesses (1) would not be contrary to what is required by law, (2) would promote judicial economy, and (3) would be a benefit to the other witnesses who would be able to appear at the time scheduled for their testimony rather than at the time the supervising judge is available for the administration of oaths.² Accordingly, the Committee is proposing that ''by the court'' be deleted from the rule, and a cautionary provision be added to the second paragraph of the Comment that explains when it is necessary to give constitutional warnings to a witness, the warnings and oath must be administered by the court.

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¹ Rule 227 originally was Rule 259. The rule was renumbered Rule 227 as part of the Court's reorganization and renumbering of the Criminal Rules in 2001. Except for this 2001 change, this rule remains in its original form.

² From our examination of this matter, we learned that, due to logistical difficulties and the manner in which the proceedings are conducted, frequently the supervising judge is available only one time during the day to administer oaths to the investigating grand jury witnesses.

[Pa.B. Doc. No. 03-818. Filed for public inspection May 2, 2003, 9:00 a.m.]