1307 Proposed amendment concerning use of advanced communication technology in preliminary arraignments and arraignments

Title 234--RULES OF CRIMINAL PROCEDURE

PART I.  GENERAL

[234 PA CODE CHS. 100, 300 AND 6000]

Proposed Amendment Concerning Use of Advanced Communication Technology in Preliminary Arraignments and Arraignments

[28 Pa.B. 3931]

Introduction

   The Criminal Procedural Rules Committee is planning to recommend that the Supreme Court of Pennsylvania amend Rules 140 (Preliminary Arraignment), 303 (Arraignment), and 6003 (Procedure in Non-Summary Municipal Court Cases), and make correlative changes to Rules 102 (Procedure in Court Cases Initiated by Arrest without Warrant) and 123 (Procedure in Court Cases when Warrant of Arrest is Executed within Judicial District of Issuance). This proposal would provide for the use of advanced communication technology, including closed circuit television, in preliminary arraignments and arraignments. 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 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 explanatory Reports.

   The text of the proposed rule changes precedes the Report. Deletions are in bold and brackets, and additions are in bold.

   We request that interested persons submit suggestions, comments, or objections concerning this proposal to the Committee through counsel, Anne T. Panfil, Chief Staff Counsel, Supreme Court of Pennsylvania, Criminal Procedural Rules Committee, P. O. Box 1325, Doylestown, PA 18901 no later than Wednesday September 9, 1998.

By the Criminal Procedural Rules Committee

FRANCIS BARRY MCCARTHY,   
Chair

Annex A

TITLE 234.  RULES OF CRIMINAL PROCEDURE

PART I.  GENERAL

CHAPTER 100.  PROCEDURE IN COURT CASES

PART I.  INSTITUTING PROCEEDINGS

Rule 102.  Procedure in Court Cases Initiated by Arrest Without Warrant.

*      *      *      *      *

   Official Note: Original Rule 118 and 118(a), adopted June 30, 1964, effective January 1, 1965, suspended January 31, 1970, effective May 1, 1970. New Rule 118 adopted January 31, 1970, effective May 1, 1970; renumbered Rule 130 September 18, 1973, effective January 1, 1974; amended December 14, 1979, effective April 1, 1980; amended April 24, 1981, effective July 1, 1981; amended January 28, 1983, effective July 1, 1983; Comment revised July 12, 1985, effective January 1, 1986; January 1, 1986 effective date extended to July 1, 1986; renumbered Rule 102 and amended August 9, 1994, effective January 1, 1995; Comment revised September 26, 1996, effective immediately Comment revised,            , 1998, effective            , 1998.

Comment

   Paragraph (a) requires that the defendant receive a prompt preliminary arraignment. See Rule 140 (Preliminary Arraignment).

   Paragraph (a) is intended to permit the use of advanced communication technology (including audio-video equipment and closed circuit television) in preliminary arraignments. See Rule 140 and Comment for the procedures governing the use of advanced communication technology in preliminary arraignments.

*      *      *      *      *

Committee Explanatory Reports:

   Report explaining the August 9, 1994 amendments published at 22 Pa.B. 6 (January 4, 1992); Final Report published with the Court's Order at 24 Pa.B. 4342 (August 27, 1994).

   Report explaining the September 26, 1996 Comment revision published with the Court's Order at 26 Pa.B. 4894 (October 12, 1996).

   Report explaining the proposed revisions concerning the use of advanced communication technology in preliminary arraignments published at 28 Pa.B. 3934 (August 15, 1998).

PART III.  SUMMONS AND ARREST WARRANT

PART B.  ARREST WARRANT PROCEDURES

Rule 123.  Procedure in Court Cases When Warrant of Arrest is Executed Within Judicial District of Issuance.

*      *      *      *      *

   Official Note: Original Rule 116, adopted June 30, 1964, effective January 1, 1965; suspended January 31, 1970, effective May 1, 1970. New Rule 116 adopted January 31, 1970, effective May 1, 1970; renumbered Rule 122 September 18, 1973, effective January 1, 1974; amended January 28, 1983, effective July 1, 1983; Comment revised July 12, 1985, effective January 1, 1986, effective date extended to July 1, 1986; renumbered Rule 123 and Comment revised August 9, 1994, effective January 1, 1995; Comment revised            , 1998, effective            , 1998.

Comment

   This rule was amended in 1983 to permit closed circuit television preliminary arraignment, to insure that the preliminary arraignment is not delayed and the defendant is not detained unduly because of the unavailability of a particular issuing authority (see Rule 23), to reflect that ''judicial district'' is the appropriate subdivision of the Commonwealth, and to make the wording of this rule consistent with related rules. See Rules 76 and 124. These amendments are not intended to affect the responsibility of the police and issuing authorities to insure prompt preliminary arraignments.

   See Rule 140 and Comment for the procedures governing the use of advanced communication technology, including closed circuit television, in preliminary arraignments.

Committee Explanatory Reports:

   Report explaining the August 9, 1994 Comment revisions published at 22 Pa.B. 6 (January 4, 1992); Final Report published with the Court's Order at 24 Pa.B. 4342 (August 27, 1994).

   Report explaining the proposed revisions concerning the use of advanced communication technology in preliminary arraignments published at 28 Pa.B. 3934 (August 15, 1998).

PART IV.  PROCEEDINGS BEFORE ISSUING AUTHORITIES

Rule 140.  Preliminary Arraignment.

   (A)  In the discretion of the issuing authority, the preliminary arraignment of the defendant may be conducted by using advanced communication technology.

   [(a)] (B)  ***

   [(b)] (C)  ***

   [(c)] (D)  ***

   [(d)] (E)  ***

   [(e)] (F)  ***

   [(f)] (G)  ***

   [(g)] (H)  ***

   Official Note:   Original Rule 119 adopted June 30, 1964, effective January 1, 1965; suspended January 31, 1970, effective May 1, 1970. New Rule 119 adopted January 31, 1970, effective May 1, 1970; renumbered Rule 140 September 18, 1973, effective January 1, 1974; amended April 26, 1979, effective July 1, 1979; amended January 28, 1983, effective July 1, 1983; rescinded August 9, 1994, effective January 1, 1995. New Rule 140 adopted August 9, 1994, effective January 1, 1995; amended September 13, 1995, effective January 1, 1996. The January 1, 1996 effective date extended to April 1, 1996; the April 1, 1996 effective date extended to July 1, 1996; amended            , effective            .

Comment

   Former Rule 140 was rescinded and replaced by new Rule 140 in 1994. Although the rule has been extensively reorganized, only paragraphs [(b)] (C) and [(c)] (D) reflect changes in the procedures contained in the former rule.

   A preliminary arraignment as provided in this rule bears no relationship to arraignment in criminal courts of record. See Rule 303.

   Pursuant to paragraph (A), instead of bringing the defendant before the issuing authority for the preliminary arraignment, advanced communication technology, such as two-way audio-video equipment or closed circuit television, may be utilized. It is intended that any advanced communication technology used for the preliminary arraignment must allow the defendant and the issuing authority to see and communicate with each other. When the defendant is represented by counsel, the defendant must be permitted to communicate fully and confidentially with the defense attorney during the preliminary arraignment.

   Paragraph [(b)] (C) requires that the defendant receive copies of the arrest warrant and the supporting affidavit(s) at the time of the preliminary arraignment. See also Rules 119(a), 2008(a), and 6003.

   Paragraph [(b)] (C) includes a narrow exception which permits the issuing authority to provide copies of the arrest warrant and supporting affidavit(s) on the first business day after the preliminary arraignment. This exception applies only when copies of the arrest warrant and affidavit(s) are not available at the time the issuing authority conducts the preliminary arraignment, and is intended to address purely practical situations such as the unavailability of a copier at the time of the preliminary arraignment.

*      *      *      *      *

   Under paragraph [(c)] (D), if defendant has been arrested without a warrant, the issuing authority must make a prompt determination of probable cause before a defendant may be detained. See Riverside v. McLaughlin, 500 U.S. 44 (1991). The determination may be based on written affidavits, an oral statement under oath, or both.

Committee Explanatory Reports:

   Report explaining the provisions of the new rule published at 22 Pa.B. 6 (January 4, 1992). Final Report published with the Court's Order at 24 Pa.B. 4342 (August 27, 1994).

   Final Report explaining the September 13, 1995 amendments published with the Court's Order at 25 Pa.B. 4116 (September 30, 1995).

   Report explaining the proposed amendments concerning the use of advanced communication technology in preliminary arraignments published at 28 Pa.B. 3934 (August 15, 1998).

CHAPTER 300.  PRETRIAL PROCEEDINGS

Rule 303.  Arraignment.

   [(a)] (A)  ***

   (B)  In the discretion of the court, the arraignment of the defendant may be conducted by using advanced communication technology.

   [(b)] (C)  ***

   [(c)] (D) When permitted by local rule, a defendant may waive appearance at arraignment if the following requirements are met:

   (1)  the defendant is represented by counsel of record and counsel concurs in the waiver;

   (2)  the defendant and counsel sign and file with the clerk of courts a waiver of appearance at arraignment which acknowledges that the defendant:

   (i)  understands the nature of the charges;

   (ii)  understands the rights and requirements contained in paragraph [(b)] (C) of this rule; and

   (iii)  waives his or her right to appear for arraignment.

   Official Note:  Formerly Rule 317, adopted June 30, 1964, effective January 1, 1965; paragraph [(b)] (B) amended November 22, 1971, effective immediately; paragraphs [(a)] (A) and [(b)] (B) amended and paragraph (e) deleted November 29, 1972, effective 10 days hence; paragraphs [(a)] (A) and [(c)] (C) amended February 15, 1974, effective immediately. Rule 317 renumbered Rule 303 and amended June 29, 1977, amended and paragraphs (c) and (d) deleted October 21, 1977, and amended November 22, 1977, all effective as to cases in which the indictment or information is filed on or after January 1, 1978; Comment revised January 28, 1983, effective July 1, 1983; amended October 21, 1983, effective January 1, 1984; amended August 12, 1993, effective September 1, 1993; rescinded May 1, 1995, effective July 1, 1995, and replaced by new Rule 303. New Rule 303 adopted May 1, 1995, effective July 1, 1995; amended            , 1998, effective            , 1998.

Comment

   Although this rule does not explicitly require formal arraignments, judicial districts must see to it that the purposes for which arraignments are held, as specified in this rule, are observed in some fashion in all court cases.

   The main purposes of arraignment are: to assure that the defendant is advised of the charges; to have counsel enter an appearance, or, if the defendant has no counsel, to consider the defendant's right to counsel; and to commence the period of time within which to initiate pretrial discovery and to file other motions. Concerning the waiver of counsel, see Rule 318.

   Pursuant to paragraph (B), instead of bringing the defendant before the court for the arraignment, advanced communication technology, such as two-way audio-video equipment or closed circuit television, may be utilized. It is intended that any advanced communication technology used for the arraignment must allow the defendant and the judicial officer presiding over the arraignment to see and communicate with each other. When the defendant is represented by counsel, the defendant must be permitted to communicate fully and confidentially with the defense attorney during the arraignment.

   Under paragraph [(a)] (A), in addition to other instances of ''cause shown'' for delaying the arraignment, the arraignment may be delayed where the defendant was unavailable for arraignment within the 10-day period after the information was filed. Paragraph [(c)] (D) is intended to facilitate, for defendants represented by counsel, waiver of appearance at arraignment through procedures such as arraignment by mail.

Committee Explanatory Reports:

   Report explaining the August 12, 1993 amendments published at 22 Pa.B. 3826 (July 25, 1992).

   Final Report explaining the May 1, 1995 changes published with the Court's Order at 25 Pa.B. 1944 (May 20, 1995).

   Report explaining the proposed amendments concerning the use of advanced communicationtechnology in arraignments published at 28 Pa.B. 3934 (August 15, 1998).

CHAPTER 6000.  RULES OF CRIMINAL PROCEDURE FOR THE MUNICIPAL COURT OF PHILADELPHIA

Rule 6003.  Procedure in Non-Summary Municipal Court Cases.

*      *      *      *      *

D.  PRELIMINARY ARRAIGNMENT

   (1) When a defendant has been arrested within Philadelphia County in a Municipal Court case, with or without a warrant, the defendant shall be afforded a preliminary arraignment by a Municipal Court judge without unnecessary delay. If the defendant was arrested without a warrant pursuant to subsection A(1)(a) or (b), unless the Municipal Court judge makes a determination of probable cause, the defendant shall not be detained.

   (2) In the discretion of the Municipal Court judge, the preliminary arraignment of the defendant may be conducted by using advanced communication technology.

   [(2)] (3)  ***

   [(3)] (4)  ***

E.  ACCEPTANCE OF BAIL PRIOR TO TRIAL

   The Clerk of Quarter Sessions shall accept bail at any time prior to the Municipal Court trial.

   Official Note:  Original Rule 6003 adopted June 28, 1974, effective July 1, 1974; amended January 26, 1977, effective April 1, 1977; amended December 14, 1979, effective April 1, 1980; amended July 1, 1980, effective August 1, 1980; amended October 22, 1981, effective January 1, 1982; Comment revised December 11, 1981, effective July 1, 1982; amended January 28, 1983, effective July 1, 1983; amended February 1, 1989, effective July 1, 1989; rescinded August 9, 1994, effective January 1, 1995. New Rule 6003 adopted August 9, 1994, effective January 1, 1995; amended September 13, 1995, effective January 1, 1996. The January 1, 1996 effective date extended to April 1, 1996; amended March 22, 1996, effective July 1, 1996; the April 1, 1996 effective date extended to July 1, 1996; amended            , 1998, effective            , 1998.

Comment

   Former Rule 6003 was rescinded and replaced by new Rule 6003 in 1994. Although Rule 6003 has been extensively reorganized, only subsections D(1) and D [(2)] (3) (c) reflect changes in the procedures contained in the former rule.

*      *      *      *      *

   Section D (Preliminary Arraignment) is intended to permit closed circuit television preliminary arraignments.

   Pursuant to paragraph D(2), instead of bringing the defendant before the Municipal Court judge for the preliminary arraignment, advanced communication technology, such as two-way audio-video equipment or closed circuit television, may be utilized. It is intended that any advanced communication technology used for the preliminary arraignment should allow the defendant and the Municipal Court judge to see and communicate with each other. When the defendant is represented by counsel, the defendant should be permitted to communicate fully and confidentially with the defense attorney during the preliminary arraignment.

   Under sections A and D, if a defendant has been arrested without a warrant, the issuing authority must make a prompt determination of probable cause before the defendant may be detained. See Riverside v. McLaughlin, 500 U.S. 44 (1991). The determination may be based on written affidavits, an oral statement under oath, or both.

   Subsection D[(2)] (3) (c) requires that the defendant receive copies of the arrest warrant and the supporting affidavits at the preliminary arraignment. This amendment parallels Rule 140 [(b)] (C). See also Rules 119(a) and 2008(a).

   Subsection D[(2)] (3) (c) includes a narrow exception which permits the issuing authority to provide copies of the arrest warrant and supporting affidavit(s) on the first business day after the preliminary arraignment. This exception applies only when copies of the arrest warrant and affidavit(s) are not available at the time the issuing authority conducts the preliminary arraignment, and is intended to address purely practical situations such as the unavailability of a copier at the time of the preliminary arraignment.

   Nothing in this rule is intended to address public access to arrest warrant affidavits. See Commonwealth v. Fenstermaker, 530 A.2d 414 (Pa. 1987).

   Under subsection D[(3)] (4), after the preliminary arraignment, if the defendant is detained, the defendant must be given an immediate and reasonable opportunity to post bail, secure counsel, and notify others of the arrest. Thereafter, if the defendant does not post bail, he or she must be committed to jail, as provided by law.

Committee Explanatory Reports:

   Report explaining the provisions of the new rule published at 22 Pa.B. 6 (January 4, 1992). Final Report published with the Court's Order at 24 Pa.B. 4342 (August 27, 1994).

   Final Report explaining the September 13, 1995 amendments published with Court's Order at 25 Pa.B. 4116 (September 30, 1995).

   Final Report explaining the March 22, 1996 amendments published with the Court's Order at 26 Pa.B. 1688 (April 13, 1996).

   Report explaining the proposed amendmentsconcerning the use of advanced communication technology in arraignments published at 28 Pa.B. 3934 (August 18, 1998).

REPORT

Proposed Amendments to
Pa.Rs.Crim.P. 102, 123, 140, 303, 6003

USE OF ADVANCED COMMUNICATION TECHNOLOGY IN PRELIMINARY
ARRAIGNMENTS AND ARRAIGNMENTS

A.  INTRODUCTION

   Several correspondents have requested that the Committee consider amending the Criminal Rules to permit the use of advanced communication technology, such as closed circuit television, in criminal proceedings, particularly for conducting preliminary arraignments and arraignments. They pointed out that many types of such technology is readily available, and would be useful to increase the efficiency of court proceedings. They also reported that some judicial districts already employ the use of advanced communication technology for certain criminal proceedings and that the Criminal Rules do not specifically address such practices.

   The Comments to Rules 102, 123, and 6003 were revised in 1983 to acknowledge that preliminary arraignments may be conducted by closed circuit television. This revision was intended to insure that:

   1.  the preliminary arraignment is not delayed; and

   2.  the defendant is not detained unduly because of the unavailability of a particular issuing authority.

In view of this, and after discussing the correspondence, the members agreed to look at the issue more broadly for inclusion in the Criminal Rules.

   The Committee reviewed Pennsylvania case law, which has upheld the use of electronic and mechanical devices (closed circuit television) for preliminary arraignments, as long as the rights of the defendant are not impaired. The courts have held that merely because a court communicates with a defendant by way of closed circuit television, the defendant is not deprived of constitutional rights. See Commonwealth v. Terebieniec, 408 A.2d 1120 (Pa. Super. 1979) (the court found no unconstitutional prejudice inherent in appellant's preliminary arraignment conducted by closed circuit television).

   We also examined the rules in several other jurisdictions, and found that the use of closed circuit television for arraignment and other criminal proceedings is widespread. In addition, we noted that several judicial districts in Pennsylvania already use two-way closed circuit television systems in preliminary arraignment and arraignment proceedings.

   Finally, Governor Ridge recently signed Act No. 67 of 1998, effective August 9, 1998, which provides, in the discretion of the court, for arraignment of a defendant by using two-way electronic audio-visual communications.

   Based on our research, the fact that other jurisdictions, as well as several judicial districts within Pennsylvania, already employ the use of advanced communication technology in arraignment and preliminary arraignment proceedings, and the new Act, the Committee agreed that the Criminal Rules should be amended to include in the text of the rules that, in the discretion of the court, preliminary arraignments and arraignments may be conducted by using advanced communication technology, such as closed circuit television. The Committee recognized that methods of technology may vary and change over time and, therefore, rather than defining ''advanced communication technology,'' has highlighted in the Comments the parameters which must be met in order for the use of such technology to be valid. This would allow the courts opting to use advanced communication technology to determine which systems best suit their needs.

B.  DISCUSSION OF RULE CHANGES

   1.  Rule 140 (Preliminary Arraignment)

   Rule 140 establishes the procedures for preliminary arraignments. The Committee is recommending that the Court amend Rule 140 and the Comment to clarify that advanced communication technology may be used in preliminary arraignments. Paragraph (A) would provide that, in the discretion of the issuing authority, the preliminary arraignment may be conducted by using advanced communication technology. The Committee is revising the Comment to make it clear that any advanced communication technology used in preliminary arraignments must allow:

   a.  the defendant and the issuing authority to see and communicate with each other; and

   b.  in those cases in which the defendant is represented by counsel, the defendant to communicate fully and confidentially with the defense attorney during the preliminary arraignment.

   2.  Rule 6003D (Procedure in Non-summary Municipal Court Cases)

   Rule 6003 establishes the procedures for non-summary Municipal Court cases in Philadelphia. Part D of the rule encompasses preliminary arraignments. Rule 6003D would be amended by adding a paragraph which would allow, in the discretion of the Municipal Court judge, that the preliminary arraignment of the defendant be conducted by using advanced communication technology. See Rule 6003D(2). The Comment would be revised to cross-reference Rule 140 and to reflect that the use of advanced communication technology in preliminary arraignments may be used on a routine basis, as long as the requirements of Rule 140 are satisfied. See discussion supra part B.2.

   3.  The Comments to Rule 102 (Procedure in Court Cases Initiated by Arrest without Warrant) and Rule 123 (Procedure in Court Cases when Warrant of Arrest is Executed within Judicial District of Issuance)

   Rule 102 establishes the procedures in court cases initiated when a defendant is arrested without a warrant, and Rule 123 establishes the procedure in court cases when a defendant is arrested pursuant to a warrant which is executed within the judicial district in which it was issued. The Comments to both Rules 102 and 123 already contemplate the use of closed circuit television in preliminary arraignments. In view of the Committee agreement to recommend amendments to Rules 140 and 6003, we also agreed that the Comment language should be expanded to encompass the use of not only closed circuit television, but also any other type of advanced communication equipment. The Comments also have been revised to cross-reference Rule 140, which outlines the procedural requirements for preliminary arraignments in court cases. See discussion supra part B.

4.  Rule 303 (Arraignment)

   Rule 303 establishes the procedures for arraignments. The Committee is proposing amendments to Rule 303 and the Comment to clarify that advanced communication technology may be used in arraignments. Paragraph (B) would provide that, in the discretion of the court, the arraignment may be conducted by using advanced communication technology. The Comment would be revised to provide that any advanced communication technology equipment may be used in arraignments as long as it allows:

   1.  the defendant and the judicial officer conducting the arraignment to see and communicate with each other; and

   2.  when the defendant is represented by counsel, the defendant to communicate fully and confidentially with the defense counsel during the arraignment.

[Pa.B. Doc. No. 98-1307. Filed for public inspection August 14, 1998, 9:00 a.m.]