RULE 380. PRESERVATION OF TESTIMONY AFTER COMMENCEMENT OF
PROCEEDINGS.

A. By Court Order.

     1) At any time after the commencement of 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 the
        adjudicatory hearing 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 juvenile, and the juvenile’s attorney, unless otherwise
        ordered.

     5) The court shall rule on the admissibility of the preserved testimony if it is
        offered into evidence at the adjudicatory hearing or other judicial proceeding.

B. By [a]Agreement of the [p]Parties.

     1) At any time after the commencement of proceedings, the testimony of any
        witness may be taken and preserved upon the express written agreement of
        the attorney for the Commonwealth, the juvenile, and the juvenile’s attorney.

     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 juvenile, and the juvenile’s attorney, unless they
        otherwise agree.

     4) The agreement shall be filed with the clerk of courts pursuant to Rule 345(A).

     5) The court shall rule on the admissibility of the preserved testimony if it is
        offered into evidence at the adjudicatory hearing or other judicial proceeding.
                                      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,] See Pa.R.E. 104(a); see also 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)(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

                                           2
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) 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 __ (__).




                                             3
RULE 1380. PRESERVATION OF TESTIMONY AFTER COMMENCEMENT OF
PROCEEDINGS.

A. By Court Order.

     1) At any time after the commencement of 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 the
        adjudicatory hearing 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, all parties and their
        attorneys, unless otherwise ordered; and

     5) The court shall rule on the admissibility of the preserved testimony if it is
        offered into evidence at the adjudicatory hearing or other judicial proceeding.

B. By [a]Agreement of the [p]Parties.

     1) At any time after the commencement of proceedings, the testimony of any
        witness may be taken and preserved upon the express written agreement of
        all parties;

     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 all parties and their attorneys
        unless they otherwise agree;

     4) The agreement shall be filed with the clerk of courts pursuant to Rule
        1345(A); and

     5) The court shall rule on the admissibility of the preserved testimony if it is
        offered into evidence at the adjudicatory hearing or other judicial proceeding.


                                          4
                                      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,

                                           5
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. 5571 (September 2, 2016). Final Report explaining the
amendment to Rule 1380 published with the Court’s Order at __ (__).




                                             6
