In Re: Order Revising the Comment to Rule 500 of the Pennsylvania Rules of Criminal Procedure

RULE 500. PRESERVATION OF TESTIMONY AFTER INSTITUTION OF CRIMINAL
PROCEEDINGS.
(A) BY COURT ORDER.
(1) At any time after the institution of a criminal proceedings, upon motion of any
party, and after notice and hearing, the court may order the taking and preserving
of the testimony of any witness who may be unavailable for trial or for any other
proceeding, or when due to exceptional circumstances, it is in the interests of
justice that the witness' testimony be preserved.
(2) The court shall state on the record the grounds on which the order is based.
(3) The court's order shall specify the time and place for the taking of the
testimony, the manner in which the testimony shall be recorded and preserved,
and the procedures for custody of the recorded testimony.
(4) The testimony shall be taken in the presence of the court, the attorney for the
Commonwealth, the defendant(s), and defense counsel, unless otherwise
ordered.
(5) The preserved testimony shall not be filed of record until it is offered into
evidence at trial or other judicial proceeding.
(B) BY AGREEMENT OF THE PARTIES.
(1) At any time after the institution of a criminal proceeding, the testimony of any
witness may be taken and preserved upon the express written agreement of the
attorney for the Commonwealth, the defendant(s), and defense counsel.
(2) The agreement shall specify the time and place for taking the testimony, the
manner in which the testimony shall be recorded and preserved, and the
procedures for custody of the recorded testimony.
(3) The testimony shall be taken in the presence of the attorney for the
Commonwealth, the defendant(s), and defense counsel, unless they otherwise
agree.
(4) The agreement shall be filed of record.
(5) The preserved testimony shall not be filed of record until it is offered into
evidence at trial or other judicial proceeding.
COMMENT: This rule is intended to provide the means by
which testimony may be preserved for use at a
subsequent stage in the criminal proceedings. When
testimony is to be preserved by videotape recording, see
also Rule 501.
This rule does not address the admissibility of the
preserved testimony. All questions of admissibility must
be decided by the court. 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).
"May be unavailable," as used in paragraph (A), 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 trial 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), a judge should preside over the
taking of testimony. The court, however, may order that
testimony be taken and preserved without a judge's
presence when exigent circumstances exist or the location
of the witness renders a judge's presence impracticable.
Furthermore, nothing in this rule is intended to preclude
counsel, the defendant(s), and the judge from agreeing on
the record that the judge need not be present. Paragraph
(B)(3) permits the attorney for the Commonwealth, the
defendant(s), and defense counsel to determine among
themselves whether a judge should be present during the
taking of testimony. That determination should be made a
part of the written agreement required by paragraph
(B)(1).
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Nothing is this rule is intended to preclude the defendant
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. There are, however,
additional procedural requirements for preservation of
testimony by videotape recording mandated by Rule 501.
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
any other party upon payment of reasonable costs.
When testimony is taken under this rule, the proceeding
should be adversarial, and afford the parties full
opportunity to examine and cross-examine the witness.
Counsel should not reserve objections for time of trial.
Paragraphs (A)(5) and (B)(5) are intended to guard
against pretrial disclosure of potentially prejudicial matters.
For definition of "court," see Rule 103.
NOTE: Rule 9015 adopted November 8, 1982, effective
January 1, 1983; amended March 22, 1989, effective July
1, 1989; renumbered Rule 500 and amended March 1,
2000, effective April 1, 2001[.] ; Comment revised
August 31, 2016, effective October 1, 2016.
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COMMITTEE EXPLANATORY REPORTS:
Final Report explaining the March 1, 2000 reorganization and
renumbering of the rules published with the Court’s Order at 30
Pa.B. 1478 (March 18, 2000).
Final Report explaining the August 31, 2016 Comment revision
refining the definition of “unavailable” to include the elderly
published with the Court’s Order at 46 Pa.B. ( , 2016).
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