PACDL Rules Comments

PACDL submits comments on relevant proposed rule changes.  Below are recent comments submitted  by the Rules Committee co-chaired by Ashley Shapiro and Jordan Barnett.

PACDL Comments Regarding Grand Juries

PACDL filed comments seeking clarification regarding a witness's right to counsel (counsel is permitted to initiate advice to the witness while the witness is appearing before the grand jury). It also sought changes to the control of investigating grand jury transcript/evidence; disclosure of investigating grand jury testimony (trial court judge, and not the supervising judge fo the grand jury, should have the authority to release grand jury testimony to the defendant, consistent with the rules of pretrial discovery), a witness's right to presence of counsel (seeking addition of language that counsel for the witness under examination may be present with the investigation grand jury when in session); gag orders on witnesses and their attorneys (consistency with statute to exclude witnesses and by extension theiur attorneys from the secrecy oath that applies to jurors, stenographers, or interpreters), guidance on an investigation by the Commonwealth's attorney (clarify that the commonwealt's attorney should not be permitted to make argument with regards to the meaning of the evidence presented to the grand jury or what conclusions that the grand jury should reach about the evidence), investigating grand jury reports (proposed rules fail to comptemplate any role for a defendant or defense counsel in challenging a grand jury report before is release or a minimally protective due process that is required and there is no opportunity to review the report prior to release in the rules), motions for return of property (proposed rules should clarify where such motions should be filed for return of propery), presence of supervising judge (the proposed rule should make clear that the commonwealth should not assume the position or authority of the supervising judge), and subject matter of a multi-county investigating grand jury (proposed rule 245(c)(2) should be consistent with 42 Pa.C.S. Sec. 4544(a).  The full letter can be read here.  

PACDL Submits Comments Regarding In Forma Pauperis Proposed Pa. R. Crim.P.124

PACDL supports the adoption of Proposed Rule 124 which provides a general rule for the application of in forma pauperis across all fees or costs associated with filing motions, petitions, notices, and applications in criminal cases. PACDL urged clarfication in the Comment that the Rule does not prohibit the reduction or waiver of any fees, costs or other financial assessments imposed as a result of conviction pursuant to another authority. Additionally, PACDL sought clarification of the proposal rule to authorize the IFP process for fees and costs that are not imposed by the court upon conviction but may be assessed or required after a conviction. It also urged that the Committee specify that admissibility and participation in specialty courts and other diversionary programs should not be restricted by one's fiancial status.

Finally, PACDL reminded the Committee that the waiver of filing fees and/or IFP status should not be restricted to those defendants who are represented by a Public Defender office. Many other defendants, including those represented by court-appointed or pro bono counsel, may also qualify for IFP status. The full letter can be read here.

PACDL urged that PA.R.Civ.P.M.D.J. 1206 be amended to include contact information for the local bar association lawyer referral program upon issuance of an emergency order. It also recommended that defednts be notified about the denial of a temporary PFA and that the denial should not be destroyed, but rather, maintained  for five years after the denial of the petition. To read the full letter, click here. 
PACDL commended the Committee's efforts to ensure juries constitute a representative cross-section of the community. It also asked for a number of changes to Rule 632. Specifically, it recommended that the retention of information provided by prospective and impaneled jurors should be mandatory for all judicial districts. It also requested that the proposed language be amended to require the retention of impaneled jurors' questionaires in a sealed file and that a framework be added through which defense counsel may petition for access to the information to demonstrate racial animus motivated the jury's finding of guilt. See full letter here.

PACDL Sought Changes to Professional Rule 1.6 Comment 

Convicted criminal defendants may file petitions for post-conviction relief in state and federal courts, and oftentimes these petitions include claims of ineffective assistance of counsel. A criminal defense lawyer whose former client alleges that their conviction resulted from the lawyer’s ineffectiveness faces serious ethical dilemmas that implicate Rules 1.6 and 1.9 of the Pennsylvania Rules of Professional Conduct. PACDL strongly urged the adoption of the comments to avoid any confusion about the lawyer’s ethical obligations to the former client. Detailed letter can be found here.