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 of Stradley Ronon and Jordan Barnett of the Philadelphia Defenders Association.

PACDL Comments Regarding Grand Juries (January 2023)

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 (April 2023)

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 Filed Comments regarding Denial of Petitions for Emergency Protective Relief (April 2023)

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 Files Comments to Cross-Section Jury Questionnaire Proposed Amendment to Pa.R.Crim.P. 632 (April 2023)

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  (April 2023)

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.

PACDL Voices Opposition to Potential Changes in Sexual Offenses Standard Jury Instructions (June 2023)

PACDL raised significant concerns with victim advocates' proposals to add an “affirmative consent” requirement to the jury instructions relating to “consent., arguing that Pennsylvania is not as an “affirmative consent” jurisdiction, advocates misrepresented the prevailing legal sentiment on “affirmative consent” in criminal matters, and seek to avoid the legislative process and instead rewrite the law.  PACDL's comments also noted that the proposed amendments also raise serious due process concerns by impermissibly shifting the burden of proof to the defendant to disprove guilt, infringing on the presumption of innocence, and making sexual assault a strict liability offense.
 
In addition to these more general objections, PACDL has specific objections to the Memo’s recommendations. First, the proposed amendments to the instructions on rape, involuntary deviate sexual intercourse (IDSI), and aggravated indecent assault by forcible compulsion should be rejected because they eliminate the prosecution’s burden of proving lack of consent beyond a reasonable doubt and instead require that the defendant prove consent as an affirmative defense. Second, the recommended jury charge that “[s]ilence, inaction, and lack of resistance do not mean consent” is inconsistent with Pennsylvania law, which maintains that consent must be viewed in light of all the circumstances. Third, the proposed amendments to the instructions relating to sexual assault, aggravated indecent assault, and indecent assault fail to clarify that the burden is on the Commonwealth to prove lack of consent beyond a reasonable doubt. Fourth, the instruction on indecent assault needlessly removes the existing guidance that the age and mentality of the alleged victim must be considered when assessing whether consent was present. Finally, the Memo’s recommendation to alter the definition of “consent” to mean that “[c]onsent must be ongoing and may be withdrawn or revoked at any time” should be rejected because the Memo fails to provide any legal authority to support this recommendation, and the recommendation is unworkable without guidance on how to assess whether the withdraw of consent was legally effective. The comment letter is available here.

 
PACDL Seeks Changes to Bail Proposal (August 2023)

In addition to advocating for the elimination of cash bail, PACDL's comments addressed the following issues in the proposal:

RULE 520.5 – Counsel and Entry of Appearance Proposed Rule 520.5 (d) indicates that “[c]ounsel may represent a defendant for the limited purpose of the initial bail determination, review of conditions, or a detention hearing.” The comment goes on to require that “[f]or privately retained counsel, the extent of counsel’s representation should be set forth in the entry of appearance.” It is unclear from the above whether or not the extent of private counsel’s representation is also required to be entered into the Common Pleas Case Management System (“CPCMS”).


RULE 520.6(A)(2)(V) – Release Factors Proposed Rule 520.6, in listing factors to be considered whether a defendant is bailable or not, contains language in 520.6(a)(2)(v) that the court should consider “the victim’s immediate risk of substantial physical harm.” This is a new change from the previously proposed rule change in March of 2022. It is unclear from the above language whether the Committee wished the court to consider (1) risk of substantial physical harm from prior acts that formed the basis of the current charges, (2) risk of substantial physical harm from possible future acts of the defendant if the defendant was released or (3) both (1) and (2). PACDL requests that the Committee provide clarification in this language.

RULE 520.10(B)(1) – Release with Non-Monetary Special Conditions “Custody of a Designated Person” is unclear and may impose unintended legal confusion. Subsection (b)(1) of Proposed rule 520.10 indicates that the court may impose, as a condition of non-monetary release, that the defendant remain “in the custody of a designated person”. Rule 520.10 does not provide for a condition of release that a defendant reside with a specific person. While PACDL appreciates the non-monetary condition of release to a designated individual, PACDL respectfully suggested that this is insufficient to provide the court the flexibility to release individuals who may not need cash bail imposed but are still in need of community support. PACDL suggested that the language in (b)(1) be modified to read “reside with a designated person or entity/organization.”  

RULE 520.11(D)(1) – Financial Disclosure Form Subsection (d)(1) of Proposed Rule 520.1 proposes a financial disclosure form, verified by the defendant shall be completed whenever cash bail is deemed necessary. PACDL noted the proposal is unclear of the proposed process for this form being completed. It suggested that the Rule should clarify who is expected to interview the defendant’s financial disclosure form so that the affected party understands their duty under this rule. Similarly, PACDL also recommended that the Committee draft a standard form to be used in this situation to allow transparency and consistency across the Commonwealth in what financial information is relevant for purposes of assessing a defendant’s financial situation. The comment letter is available here.


PACDL Responds to Proposed Amendments to Pa.R.Crim.P. 632 (August 2023)
 
PACDL reviewed the proposed amendment to Pa.R.Crim.P. 632 to include an optional query for religious affiliation. PACDL does not object to the inclusion of this on the jury questionnaire. PACDL maintains a significant concern with the Committee’s decision to (1) make a judicial district’s retention of juror demographic information voluntary and (2) to not retain empaneled juror’s questionnaires. As we noted in our previous letter on April 24, 2023, the ability to access this information and litigate potential claims flowing from it should not vary from judicial district to judicial district and making a retention system voluntary raises an equal protection concern. 
 
Additionally, the failure to retain the individual juror’s questionnaires raises significant due process concerns for a defendant. The United States Supreme Court’s recent decision in Pena-Rodriguez v. Colorado, 137 S.Ct. 855 (2017) permits a defendant to impeach a jury’s verdict by demonstrating that racial animus motivated the jury’s finding of guilt. However, the ability to pursue such a claim is meaningless without the defendant being afforded proper access to the information of impaneled jurors. Comment letter is available here.