Written by Gregory Monte.
“… however, in all summary cases arising under the Vehicle Code or local traffic ordinances, the law enforcement officer observing the defendant’s alleged offense may, but shall not be required to, appear and testify against the defendant. In no event shall the failure of the law enforcement officer to appear, by itself, be a basis for dismissal of the charges against the defendant.”
Violation of the US and Pennsylvania Constitutions?
Yes, you read that correctly – the cop doesn’t have to show up to testify against you in court, and you can’t necessarily ask for a dismissal of the charge on this basis.
When I first found out about Pennsylvania Rule 454(B), I was astounded. I wondered how, on earth, could this be legitimate, given that it appears to be a blatant violation of the 6th Amendment of the United States Constitution.
“In all criminal prosecutions, the accused shall enjoy the right to … be confronted with the witnesses against him …”
Not only that, it also appeared to be a violation of Article 1, Section 9 of the Pennsylvania Constitution (Rights of accused in criminal prosecutions.):
“In all criminal prosecutions the accused hath a right … to be confronted with the witnesses against him …”
Judge Disciplined for Upholding the Constitution
In my daily reading of Pennsylvania court cases, I came across In re Marraccini, 908 A. 2d 377 – 2006 which shed some light on this issue.
Back in 2006, Magisterial Court Judge Ernest L. Marraccini was charged with several violations of the Pennsylvania Constitution and the Standard of Conduct for judges. There were numerous accusations in this case, but I am only going to focus on the main issue which relates to Rule 454B.
Here is the backstory to this case.
On the morning of May 5, 2004, Judge Marraccini was filling in for another judge in Allegheny County, Pennsylvania. Approximately thirty traffic cases were on the docket, and he was informed that the police officers who issued the tickets were not going to be present in court. The Chief of Police in the town reminded the judge that:
“… under [Rule 454B] he couldn’t dismiss or ‘throw out’ a case just because the officer doesn’t show …”
According to court documents, Judge Marraccini did not agree with the Chief’s assessment of the burden of proof and he …
“… warned [the Chief] that he might just throw out all of the cases … and told him that he knew the rules.”
True to his word, the judge threw out most of the cases:
“[The judge] left the courtroom and entered the secretaries’ area, which was separated from the waiting room by a glass partition with a window, and announced to the remaining twenty-some defendants that all those with Edgewood Borough traffic tickets were not guilty and should leave … because ‘there is no proof … there’s no evidence.’”
For this action (upholding the US and Pennsylvania Constitutions), Judge Maraccini was brought up on disciplinary charges.
Fortunately, this story had a happy ending. Two years later, the Judge was cleared of the major charges, receiving a mere “slap on the wrist” for his behavior in the waiting room of the court.
The Constitution is Saved (at least for now)
The opinion issued in this discipline case (In re Marraccini, 908 A. 2d 377 – 2006) is a long one – 26 pages. Half of it is actually a separate, concurring opinion by Judge Sandler who lays out, in no uncertain terms, the Constitutional importance of what transpired on that fateful Spring day in 2004.
After pointing out that both the US and Pennsylvania Constitutions provide a right “to be confronted with the witnesses against him,” Judge Sander specifically commented on Rule 454(B):
“The common sense — and only constitutional — meaning of Rule 454(B) is that if the issuing officer, i.e., ‘the law enforcement officer who witnessed the alleged offense’ does not appear, that, ‘by itself’ shall not be a basis for dismissal of the charges, where there is other evidence to establish the alleged offense. Such other evidence could include, for example, another witness, film properly authenticated, or a statement by the defendant. This is a reasonable interpretation of the rule, and the only one which would permit its implementation without colliding with basic constitutional principles.”
In other words, if the police officer who issued the ticket doesn’t show up AND there is no other evidence that the Commonwealth can provide against the defendant, the charges should be dismissed.
All too often in modern America, the Constitution is looked upon as a “recommendation” rather than an inviolable document which should be read as per original intent. It is nice to know that we still have judges who get it.