Philadelphia is currently in the process proposing one of the biggest overhauls to its court system since the 1970’s, when indicting grand juries (citizen juries tasked with reviewing evidence and bringing charges against those who allegedly committed crimes) were abolished to make for a more efficient court process. So what revolutionary new ideas do they have to help the court system? Former and current prosecutors are proposing that the state use indicting grand juries to avert witness intimidation and hold fugitives accountable. In essence, they are proposing a failed policy in order to help a struggling court system.
The new proposal permits a court to impanel an indicting grand jury in cases in which the state submits and ex parte motion to the judge alleging that witness intimidation has occurred or is likely to occur. If this happens, no preliminary hearing will be held. It will also allow trials in absentia, where the defendant can be tried without even being present.
Although witness intimidation and court absence is a problem that needs attention, this is an ill-advised proposal that will restrict the rights of individual citizens to a fair trial. This will effectively allow juries to trample on the defendants right to test eyewitnesses, which is a vital part of the criminal defense process. Both the defendants and criminal defense attorneys will be put at an immediate disadvantage if these proposals are enacted into law, by being unable to present their case properly.
The potential issues inherent in these proposals start with the actual implementation. These proposed rules are beyond the decision-making authority of the Pennsylvania Supreme Court, considering that they have an implication on substantive rights. According to Article V, Section 10(c) of the Pennsylvania Constitution, an individual is free from a prosecution commenced through an indicting grand jury. The Pennsylvania Legislature previously stripped Courts of the jurisdiction to provide for the initiation of proceedings through an indicting grand jury, thus effectively providing a substantive right of an accused to be free from indictment.
Secondly, the new rules are unnecessary because the criminal justice system already has processes in place to remedy the issues that the proposal seeks to address. Much of the push for these rule changes have come from independent experts and newspaper articles discussing specific instances, rather than a larger problem. The PA Supreme Court should never propose rules that substantively alter the rights of an accused and abolish a proceeding that has been integral to the criminal justice system, based solely on newspaper articles and independent opinions, particularly if these finding are isolated within a small area or single district.
Lastly, the proposed rules contain several procedural infirmities, which directly affect a citizen’s right to the effective representation of counsel. The rules would permit the state to forego a critical proceeding (preliminary hearing) simply by filing an ex parte motion with the judge, asserting that witness intimidation has occurred or may occur. The specific rule (556.2) does not provide for any burden of proof or require the state to present facts establishing a preponderance of evidence or clear and convincing evidence that witness intimidating occurred.
In addition, the rule’s specific wording effectively permits an individual to be indicted and forced to trial based on unchallenged testimony, hearsay testimony, and evidence that may be incompetent to establish a prima facie case that the accused was involved in some wrongdoing.
Pennsylvania will be in a worse position than before if they move forward and pass the new legislation. The rules attempt to abolish preliminary hearings, which are not only an opportunity to test eye witness testimony and the strength of the state’s case against the individual, but are also key in allowing a Pennsylvania criminal defense attorney the ability to fairly and adequately develop an effective defense. Having the full capacity to argue your case and get to the bottom of what happened during an alleged criminal offense is paramount to protecting the rights of Pennsylvania citizens and these rule changes will have the opposite effect.