Title 234--RULES OF CRIMINAL PROCEDURE PART I. GENERAL [234 PA. CODE CH. 300] Order Amending Rule 305; No. 208; Doc. No. 2 [26 Pa.B. 2486] Order Per Curiam:
Now, this 13th day of May, 1996, upon the recommendation of the Criminal Procedural Rules Committee; this proposal having been published at 25 Pa.B. 2987 (September 29, 1995) and in the Pennsylvania Reporter (Atlantic Second Series Advance Sheets Vol. 660) before adoption, with a Final Report to be published with this Order:
It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that Pa.R.Crim.P. 305 is hereby amended as follows.
This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective July 1, 1996.
Annex A TITLE 234. RULES OF CRIMINAL PROCEDURE PART I. GENERAL CHAPTER 300. PRETRIAL PROCEEDINGS Rule 305. Pretrial discovery and inspection.
(A)[.] Informal.
* * * * * (B)[.] Disclosure by the Commonwealth.
(1) Mandatory. In all court cases, on request by the defendant, and subject to any protective order which the Commonwealth might obtain under this rule, the Commonwealth shall disclose to the defendant's attorney all of the following requested items or information, provided they are material to the instant case. The Commonwealth shall, when applicable, permit the defendant's attorney to inspect and copy or photograph such items.
* * * * * (e) any results or reports of scientific tests, expert opinions, and written or recorded reports of polygraph examinations or other physical or mental examinations of the defendant, which are within the possession or control of the attorney for the Commonwealth;
(f) any tangible objects, including documents, photographs, fingerprints, or other tangible evidence; and
(g) the transcripts and recordings of any electronic surveillance, and the authority by which the said transcripts and recordings were obtained.
(2) Discretionary with the Court.
(a) In all court cases, except as otherwise provided in Rule 263 (Disclosure of Testimony Before Investigating Grand Jury), if the defendant files a motion for pretrial discovery, the court may order the Commonwealth to allow the defendant's attorney to inspect and copy or photograph any of the following requested items, upon a showing that they are material to the preparation of the defense, and that the request is reasonable:
[(a)] (i) ***
[(b)] (ii) ***
[(c)] (iii) all written and recorded statements, and substantially verbatim oral statements, made by co-defendants, and by co-conspirators or accomplices, whether such individuals have been charged or not; and
[(d)] (iv) ***
(b) If an expert whom the attorney for the Commonwealth intends to call in any proceeding has not prepared a report of examination or tests, the court, upon motion, may order that the expert prepare, and that the attorney for the Commonwealth disclose, a report stating the subject matter on which the expert is expected to testify; the substance of the facts to which the expert is expected to testify; and a summary of the expert's opinions and the grounds for each opinion.
(C)[.] Disclosure by the Defendant.
(1) Mandatory
(a) ***
(b) ***
(c) Disclosure of Reciprocal Witnesses. Within 7 days after service of [such] notice of alibi defense or of insanity or claim of mental infirmity defense, or within such other time as allowed by the court upon cause shown, the attorney for the Commonwealth shall disclose to the defendant the names and addresses of all persons the Commonwealth intends to call as witnesses to disprove or discredit the defendant's claim of alibi or of insanity or mental infirmity.
(d) ***
(e) ***
(f) Failure to Call Witnesses. No adverse inference may be drawn against the defendant, nor may any comment be made concerning the defendant's failure to call available alibi, insanity, or mental infirmity witnesses, when such witnesses have been prevented from testifying by reason of this rule unless the defendant or the defendant's attorney shall attempt to explain such failure to the jury.
(g) Impeachment. A defendant may testify concerning an alibi notwithstanding that the defendant has not filed notice, but if the defendant has filed notice and testifies concerning his or her presence at the time of the offense at a place or time different from that specified in the notice, the defendant may be cross-examined concerning such notice.
(2) Discretionary with the Court.
(a) In all court cases, if the Commonwealth files a motion for pretrial discovery, upon a showing of materiality to the preparation of the Commonwealth's case and that the request is reasonable, the court may order the defendant, subject to the defendant's rights against compulsory self-incrimination, to allow the attorney for the Commonwealth to inspect and copy or photograph any of the following requested items[, upon a showing of materiality to the preparation of the Commonwealth's case and that the request is reasonable]:
[(a)] (i) results or reports of physical or mental examinations, and of scientific tests or experiments made in connection with the particular case, or copies thereof, within the possession or control of the defendant, which the defendant intends to introduce as evidence in chief, or which were prepared by a witness whom the defendant intends to call at the trial, when results or reports relate to the testimony of that witness, provided the defendant has requested and received discovery under paragraph (B)(1)(e); and
[(b)] (ii) the names and addresses of eyewitnesses whom the defendant intends to call in its case in chief, provided that the defendant has previously requested and received discovery under paragraph (B)(2)(a)(i).
(b) If an expert whom the defendant intends to call in any proceeding has not prepared a report of examination or tests, the court, upon motion, may order that the expert prepare, and that the defendant disclose, a report stating the subject matter on which the expert is expected to testify; the substance of the facts to which the expert is expected to testify; and a summary of the expert's opinions and the grounds for each opinion.
(D)[.] Continuing Duty to Disclose.
* * * * * (E)[.] Remedy.
* * * * * (F)[.] Protective Orders.
* * * * * (G)[.] Work Product.
* * * * * Official Note: Present Rule 305 replaces former [Rule] Rules 310 and 312 in [its] their entirety. Former [Rule] Rules 310 and 312 adopted June 30, 1964, effective January 1, 1965. Former Rule 312 suspended June 29, 1973, effective immediately. Present Rule 305 adopted June 29, 1977 and November 22, 1977, effective as to cases in which the indictment or information is filed on or after January 1, 1978; Comment revised April 24, 1981, effective June 1, 1981; amended October 22, 1981, effective January 1, 1982; amended September 3, 1993, effective January 1, 1994; amended May 13, 1996, effective July 1, 1996.
Comment This rule is intended to apply only to court cases[;]. However, the constitutional guarantees mandated in Brady v. Maryland, 373 U. S. 83 (1963), and the refinements of the Brady standards embodied in subsequent judicial decisions, apply to all cases, including court cases and summary cases, and nothing to the contrary is intended. For definitions of ''court case'' and ''summary case,'' see Rule 3.
* * * * * Sec. 1.2: Scope of Discovery.
In order to provide adequate information for informed pleas, expedite trials, minimize surprise, afford opportunity for effective cross-examination, and meet the requirements of due process, discovery prior to trial should be as full and free as possible consistent with protection of persons, effective law enforcement, the adversary system, and national security.
Pursuant to paragraphs (B)(2)(b) and (C)(2)(b), the trial judge has discretion, upon motion, to order an expert who is expected to testify at trial to prepare a report. However, these provisions are not intended to require a prepared report in every case. The judge should determine, on a case-by-case basis, whether a report should be prepared. For example, a prepared report ordinarily would not be necessary when the expert is known to the parties and testifies about the same subject on a regular basis. On the other hand, a report might be necessary if the expert is not known to the parties or is going to testify about a new or controversial technique.
* * * * * The notice-of-alibi provision of this rule contained in [part] paragraph (C)(1)(a) is intended to comply with the requirement of Wardius v. Oregon, 412 U. S. 470 (1973), by the inclusion of reciprocal disclosure responsibilities placed upon the Commonwealth in paragraph (C)(1)(c). [This rule thus replaces former Rule 312, which was rescinded on June 29, 1973, pursuant to Wardius, supra.]
See also Commonwealth v. Contakos, [455 Pa. 136,] 314 A.2d 259 (Pa. 1974). The provision requiring a notice of insanity defense, paragraph (C)(1)(b), has not previously been included in these rules, but the safeguards surrounding them have been made identical to those protecting the defendant under the notice-of-alibi provision.
It is intended that the remedies provided in paragraph (E) apply equally to the Commonwealth and the defendant as the interests of justice require.
The provision for a protective order, [part] paragraph (F), does not confer upon the Commonwealth any right of appeal not presently afforded by [statute] law.
[Part] Paragraph (G) is derived in part from ABA Standards Relating to Discovery and Procedure Before Trial § 2.6(a). See Commentary contained therein. [Part] Paragraph (G), however, makes this provision applicable to the work product of the defense, while the ABA Standards refer only to the prosecution.
It should also be noted that as to material which is discretionary with the court, or which is not enumerated in the rule, if such information contains exculpatory evidence as would come under the Brady rule, it must be disclosed. Nothing in this rule is intended to limit in any way disclosure of evidence constitutionally required to be disclosed.
The limited suspension of Section 5720 of the Wiretapping and Electronic Surveillance Control Act, [Act of October 4, 1978, P. L. 831, No. 164,] 18 Pa.C.S. § 5720, [(] see Rule 340(b) [(g))], is intended to insure that the statutory provision and Rule 305 (B)(1)(g) are read in harmony. A defendant may seek discovery under subparagraph (B)(1)(g) pursuant to the time frame of the rule, while the disclosure provisions of Section 5720 would operate within the time frame set forth in Section 5720 as to materials specified in Section 5720 and not previously discovered.
Committee Explanatory Reports:
Report explaining the September 3, 1993 amendments published at 21 Pa.B. 3681 (August 17, 1991).
Final Report explaining the May 13, 1996 amendments published with the Court's Order at 26 Pa.B. 2488 (June 1, 1996).
FINAL REPORT Amendment of Pa.R.Crim.P. 305
Preparation of Reports by ExpertsIntroduction
On May 13, 1996, upon the recommendation of the Criminal Procedural Rules Committee, the Supreme Court amended Rule of Criminal Procedure 305 (Pretrial Discovery and Inspection) to specifically permit a judge, upon motion to order that an expert, whom either the attorney for the Commonwealth or the defendant intends to call to testify, prepare a report if no report has been prepared. This Final Report highlights the committee's considerations in formulating these amendments.11
Background
The Committee undertook a review of Rule 305 after receiving correspondence from members of the bar suggesting that Rule 305 be amended to specifically provide for the preparation of reports by experts whom either the attorney for the Commonwealth or the defendant intends to call to testify. The correspondents noted that this was one area where the spirit of Rule 305 is being eroded by the gamesmanship.
The Committee agreed that there are benefits with pretrial access to reports--it minimizes surprise, reduces the number of continuances, and assists counsel in preparing to cross-examine the expert witness. We also noted that nothing in Rule 305 prohibits the parties from requesting that an expert prepare a report. At the same time, however, we recognized that the fact that the rules do not specifically provide for requesting or ordering the preparation of expert reports has contributed to the gamesmanship the correspondents noted. Furthermore, because of the lack of specificity in Rule 305, we know that some attorneys are not aware that they may request the court to order that an expert prepare a report, and for the same reason, that some judges are reluctant to grant such requests when they are made.
In view of these considerations, the Committee concluded that a specific rule provision addressing this matter would benefit the Commonwealth, the defense, and the criminal justice system as a whole.
Discussion of Rule Changes
A. In General
Although a majority of the Committee agreed that Rule 305 should be amended, several members voiced serious concerns about a rule change. Should the proposed procedure apply to experts who frequently testify in the same courts and who are well known by the parties? Should these experts have to prepare reports in every case? Would a blanket requirement be onerous in those cases where there are legitimate reasons, such as costs, why reports are not prepared. Finally, members expressed concern that the proposed amendment would merely result in other forms of gamesmanship. The amendments to Rule 305 and Comment address these concerns.
B. Proposed Rule 305(B)(2)(b) and (C)(2)(b)
New Rule 305(B)(2)(b) applies to the attorney for the Commonwealth's experts, and new Rule 305(C)(2)(b) applies to the defendant's experts. Both paragraphs provide that if an expert whom the party intends to call to testify has not prepared a report of an examination or tests, the court, upon motion, may order that the expert prepare a report and that the party disclose the report. The reports must state the subject matter on which the expert is expected to testify, the substance of the facts to which the expert is expected to testify, and summarize the expert's opinions and the grounds for each opinion.
Under this procedure, counsel should not file boilerplate motions in every case, but rather should consider whether a given expert's report is really necessary. Similarly, the judge should not treat these motions in a pro forma manner, but should exercise his or her discretion on a case-by-case basis, taking into consideration that expert reports are not always necessary. We expect that both judges and counsel will consider such factors as the costs and time involved in the preparation of expert reports, and the nature of the expert's testimony, when making their decisions under the new procedure.
C. Rule 305 Comment
The Comment includes a paragraph underscoring the discretionary aspects of the judge's role, reiterating that the determination whether to order a report prepared must be on a case-by-case basis. The Comment also includes an example of when a report would ordinarily not be necessary--the well-known expert who testifies about the same subject on a regular basis--and an example of when a report might be necessary--an expert who is not known to the parties or who is going to testify about a new or controversial technique.
The Comment has also been revised to address another issue which was raised during the development of the proposed changes. Paragraph (E) (Remedies) provides a number of remedies which the court may impose when either party fails to comply with Rule 305. Several members pointed out that, in some cases, judges do not apply this paragraph equally to the Commonwealth and the defendant. To emphasize the importance of the equal application of remedies in the discovery context, we have added a cautionary statement to the Comment.
[Pa.B. Doc. No. 96-890. Filed for public inspection May 31, 1996, 9:00 a.m.] _______
1 Please note that the Committee's 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 Reports.
