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THE COURTS

Title 237—JUVENILE RULES

PART I. RULES

[ 237 PA. CODE CHS. 3 AND 13 ]

Order Amending Rules 380 and 1380 of the Rules of Juvenile Court Procedure; No. 716 Supreme Court Rules Doc.

[46 Pa.B. 7526]
[Saturday, December 3, 2016]

Order

Per Curiam

And Now, this 16th day of November, 2016, upon the recommendation of the Juvenile Court Procedural Rules Committee; the proposal having been submitted without publication pursuant to Pa.R.J.A. No. 103(a) in the interest of efficient administration:

It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that Rule 380 and 1380 of the Pennsylvania Rules of Juvenile Court Procedure is amended in the following form.

 This Order shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective January 1, 2017.

Annex A

TITLE 237. JUVENILE RULES

PART I. RULES

Subpart A. DELINQUENCY MATTERS

CHAPTER 3. PRE-ADJUDICATORY PROCEDURES

PART F. PRESERVATION OF TESTIMONY AND EVIDENCE

Rule 380. Preservation of Testimony After Commencement of Proceedings.

*  *  *  *  *

 B. By [agreement of the parties] Agreement of the Parties.

*  *  *  *  *

Comment

 This rule is intended to provide the means by which testimony may be preserved for use at a current or subsequent stage in the proceedings, which includes the taking of a deposition during the adjudicatory hearing to be used at a later stage of the adjudicatory hearing.

 When testimony is to be preserved by video recording, see also Rule 381.

 Commencement of proceedings includes any action after the submission of a written allegation. See Rule 200 (Commencement of Proceedings).

 This rule does not address the admissibility of the preserved testimony. The court is to decide all questions of admissibility. [See the Pennsylvania Rules of Evidence. Also see, e.g., Judicial Code § 5917, 42 Pa.C.S. § 5917 (1982); Commonwealth v. Scarborough, 421 A.2d 147 (Pa. 1980); Commonwealth v. Stasko, 370 A.2d 350 (Pa. 1977).] See Pa.R.E. 104(a); see also 42 Pa.C.S. § 5917.

 ''May be unavailable,'' as used in paragraph (A)(1), is intended to include situations in which the court has reason to believe that the witness will be unable to be present or to testify at the adjudicatory hearing or other proceedings, such as when the witness is dying, or will be out of the jurisdiction and therefore cannot be effectively served with a subpoena, or is elderly, frail, or demonstrates the symptoms of mental infirmity or dementia, or may become incompetent to testify for any other legally sufficient reason.

 Under paragraph (A)(4), the court should preside over the taking of testimony. The court, however, may order that testimony be taken and preserved without the court's presence when exigent circumstances exist or the location of the witness renders the court's presence impracticable. Furthermore, nothing in this rule is intended to preclude the juvenile's attorney, the juvenile, and the court from agreeing on the record that the court need not be present. Paragraph (B)(3) permits the attorney for the Commonwealth, the juvenile, and the juvenile's attorney to determine among themselves whether the court should be present during the taking of testimony. That determination should be made a part of the written agreement required by paragraph (B)(1).

 Nothing in this rule is intended to preclude the juvenile from waiving his or her presence during the taking of testimony.

 The means by which the testimony is recorded and preserved are within the discretion of the court under paragraph (A) and the parties under paragraph (B), and may include the use of electronic or photographic techniques such as videotape or digital video diskette. There are, however, additional procedural requirements for preservation of testimony by video recording mandated by Rule 381.

 The party on whose motion testimony is taken should normally have custody of and be responsible for safeguarding the preserved testimony. That party should also promptly provide a copy of the preserved testimony to the other party. Additionally, this rule is not intended to conflict with the requirements of the Pennsylvania Rules of Judicial Administration. For reporting and transcripts by court-employed reporters, see [the] Pa.R.J.A. Nos. [5000.1—5000.13] 4001—4016.

 When testimony is taken under this rule, the proceeding should afford the parties full opportunity to examine and cross-examine the witness. Counsel should not reserve objections for time of the adjudicatory hearing.

 Paragraphs [A(5) and B(5)] (A)(5) and (B)(5) are intended to guard against pre-adjudicatory hearing disclosure of potentially prejudicial matters.

 For the definition of ''court,'' see Rule 120.

Official Note: Rule 380 adopted April 1, 2005, effective October 1, 2005. Amended November 16, 2016, effective January 1, 2017.

Committee Explanatory Reports:

 Final Report explaining the provisions of Chapter three, Part F published with the Court's Order at 35 Pa.B. 2214 (April 16, 2005).

Final Report explaining the amendment to Rule 380 published with the Court's Order at 46 Pa.B. 7526 (December 3, 2016).

Subpart B. DEPENDENCY MATTERS

CHAPTER 13. PRE-ADJUDICATORY PROCEDURES

PART E. PRESERVATION OF TESTIMONY AND EVIDENCE

Rule 1380. Preservation of Testimony After Commencement of Proceedings.

*  *  *  *  *

 B. By [agreement of the parties] Agreement of the Parties.

*  *  *  *  *

Comment

 This rule is intended to provide the means by which testimony may be preserved for use at a current or subsequent stage in the proceedings, which includes the taking of a deposition during the adjudicatory hearing to be used at a later stage of the adjudicatory hearing.

 When testimony is to be preserved by video recording, see also Rule 1381.

 This rule does not address the admissibility of the preserved testimony. The court is to decide all questions of admissibility. See [the Pennsylvania Rules of Evidence] Pa.R.E. 104(a).

 ''May be unavailable,'' as used in paragraph (A)(1), is intended to include situations in which the court has reason to believe that the witness will be unable to be present or to testify at the adjudicatory hearing or other proceedings, such as when the witness is dying, or will be out of the jurisdiction and therefore [can not] cannot be effectively served with a subpoena, or is elderly, frail, or demonstrates the symptoms of mental infirmity or dementia, or may become incompetent to testify for any other legally sufficient reason.

 Under paragraph (A)(4), the court should preside over the taking of testimony. The court, however, may order that testimony be taken and preserved without the court's presence when exigent circumstances exist or the location of the witness renders the court's presence impracticable. Furthermore, nothing in this rule is intended to preclude the parties, their attorneys, and the court from agreeing on the record that the court need not be present. Paragraph (B)(3) permits the parties and their attorneys to determine among themselves whether the court should be present during the taking of testimony. That determination should be made a part of the written agreement required by paragraph (B)(1).

 Nothing in this rule is intended to preclude the parties from waiving their presence during the taking of testimony.

 The means by which the testimony is recorded and preserved are within the discretion of the court under paragraph (A) and the parties under paragraph (B), and may include the use of electronic or photographic techniques such as videotape or digital video diskette. There are, however, additional procedural requirements for preservation of testimony by video recording mandated by Rule 1381.

 The party on whose motion testimony is taken should normally have custody of and be responsible for safeguarding the preserved testimony. That party should also promptly provide a copy of the preserved testimony to the other parties. Additionally, this rule is not intended to conflict with the requirements of the Pennsylvania Rules of Judicial Administration. For reporting and transcripts by court-employed reporters, see [the] Pa.R.J.A. Nos. [5000.1—5000.13] 4001—4016.

 When testimony is taken under this rule, the proceeding should afford the parties full opportunity to examine and cross-examine the witness. Counsel should not reserve objections at the time of the adjudicatory hearing.

 For the definition of ''court,'' see Rule 1120.

Official Note: Rule 1380 adopted August 21, 2006, effective February 1, 2007. Amended November 16, 2016, effective January 1, 2017.

Committee Explanatory Reports:

 Final Report explaining the provisions of Rule 1380 published with the Court's Order at 36 Pa.B. 5599 (September 2, 2006).

Final Report explaining the amendment to Rule 1380 published with the Court's Order at 46 Pa.B. 7526 (December 3, 2016).

Explanatory Report

 On August 12, 2016, the Supreme Court of Pennsylvania adopted amendments to Pa.R.J.A. Nos. 4001—4016 governing court reporting and transcripts. These amendments have precipitated technical amendments to Pa.R.C.P. No. 227.3 governing the transcript of testimony, Pa.R.J.C.P. 380 governing the preservation of testimony after commencement of proceedings in delinquency actions, and Pa.R.J.C.P. 1380 governing the preservation of testimony after commencement of proceedings in dependency actions to cross-references to the court reporting and transcript rules.

 In Pa.R.C.P. No. 227.3, the note currently cross-references Pa.R.J.A. No. 5005.5 regarding the request for a transcript and provides additional information found in that rule. The note also cross-references to Pa.R.J.A. Nos. 5005.6, 5005.7, and 5005.11 governing the fees for transcripts and their payment. The amendment revises and simplifies the note to provide a cross-reference regarding the request for transcripts, the fees for transcripts and their payment to amended Pa.R.J.A. Nos. 4007, 4008, and 4009.

 In Pa.R.J.C.P. 380 and Pa.R.J.C.P. 1380, the Comments to both rules cross-reference the current chapter of the Rules of Judicial Administration governing court reporter and transcripts: 5000.1—5000.13. The amendments update these cross-references to the appropriate numbers: 4001—4016. Additionally, the Comments are revised to reflect recent revisions to the Comment to Pa.R.Crim.P. 500.

[Pa.B. Doc. No. 16-2067. Filed for public inspection Decmber 2, 2016, 9:00 a.m.]



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