For the Defense - Vol. 4, Issue 4 - 7

that it requires the Commonwealth to act with due
diligence to bring a defendant to trial within the
defined period of 365 days, no prejudice showing
required.5

What Does Rule 600 Say?
The core of Rule 600 has always been that the
Commonwealth has 365 days from the filing of the
complaint to bring the defendant to trial, and if it
does not do so, the charges must be dismissed.6 The
specifics of the rule, however, have changed over time.
Rule 600 was significantly altered by amendments
which took effect on July 1, 2013.7 Under the current
version of Rule 600, "periods of delay at any stage of
the proceedings caused by the Commonwealth when
the Commonwealth has failed to exercise diligence
shall be included in the computation of time within
which trial must commence. Any other periods of
delay shall be excluded from the computation."8
The prior version of the Rule suggested that any
continuance requested by the defense constituted
excludable time.9 The current Rule, conversely,
requires the trial court to record the party requesting
the continuance, the reason for the continuance, and
to whom the delay is to be attributed.10 This not only
places an affirmative duty on the trial court to record
this information, but it also makes clear that the party
requesting the continuance need not be the party to
whom the continuance is attributed. Nonetheless, it is
not unheard of for trial judges to simply record that a
continuance was requested by a defendant, assuming
that resolves the question of to whom the delay is
to be attributed. In other courtrooms, judges may
"require" counsel to sign a Rule 600 waiver in order to
receive a continuance, even if the continuance request
is occasioned by the Commonwealth's lack of diligence
(e.g., when the Commonwealth has failed to provide
complete discovery). Neither of these practices finds
foundation in the Rules of Criminal Procedure and
should be objected to by competent defense counsel.

What Time Is Included in the
Calculation?
Plainly, periods in which the Commonwealth
did not act diligently are included in the 365 days.
Furthermore, time attributable to the normal
progression of the case, such as the passage of time
between the filing of a complaint and the first status
conference, does not constitute excludable "delay"
that would stop the clock.11

The key is this: if the prosecutor is trial-ready
but must wait past the mechanical run date
to get a trial date due to the court's calendar,
those days should be excluded.12 However, if the
Commonwealth is not ready to go to trial, it cannot
point to delays caused by the Court's scheduling
as excludable time when it was never ready to
proceed during those periods.13
It is important to remember, however, that if
the defense indicates acceptance of a continuance,
the time associated with the continuance is
excludable.14 Thus, defense counsel should ask
to put its argument on the record if counsel
believes any continuance should be attributed
to the Commonwealth. Arguably, if the record
is ambiguous as to the reason for a continuance
request, because it is the Commonwealth's burden
to place all critical requests on the record and to
prove its diligence, any lack of record should be
held against the Commonwealth. Nonetheless,
best practice is to place on the record why
each continuance should be attributed to the
Commonwealth.15

What Is Due Diligence?
In determining whether the Commonwealth
has exercised due diligence, the courts have
explained that "due diligence is fact-specific, to
be determined case-by-case; it does not require
perfect vigilance and punctilious care, but merely
a showing that the Commonwealth has put forth
a reasonable effort."16 The Commonwealth must
prove it acted with diligence throughout the
proceedings, not just at the last listing before the
amended run date.17 Misconduct or lack thereof is
irrelevant.18
The due diligence requirement starts the day the
complaint is filed and includes law enforcement's
duty to act with diligence in finding and
apprehending the person charged with the crime.19
Moreover, the Commonwealth must act
with diligence in ensuring that a defendant is
preliminarily arraigned in front of a Magisterial
District Judge.20 That is, if the Commonwealth
knows that the defendant is being held in a
jail somewhere in the Commonwealth, it is the
Commonwealth's duty to obtain a writ for that
person's appearance in front of the appropriate
District Judge. Similarly, it is the Commonwealth's
responsibility to ensure a writ for the defendant's
appearance at every court date. 21
Vol.4,3,Issue
Issue44 l l For
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For the Defense - Vol. 4, Issue 4

Table of Contents for the Digital Edition of For the Defense - Vol. 4, Issue 4

Contents
For the Defense - Vol. 4, Issue 4 - 1
For the Defense - Vol. 4, Issue 4 - 2
For the Defense - Vol. 4, Issue 4 - Contents
For the Defense - Vol. 4, Issue 4 - 4
For the Defense - Vol. 4, Issue 4 - 5
For the Defense - Vol. 4, Issue 4 - 6
For the Defense - Vol. 4, Issue 4 - 7
For the Defense - Vol. 4, Issue 4 - 8
For the Defense - Vol. 4, Issue 4 - 9
For the Defense - Vol. 4, Issue 4 - 10
For the Defense - Vol. 4, Issue 4 - 11
For the Defense - Vol. 4, Issue 4 - 12
For the Defense - Vol. 4, Issue 4 - 13
For the Defense - Vol. 4, Issue 4 - 14
For the Defense - Vol. 4, Issue 4 - 15
For the Defense - Vol. 4, Issue 4 - 16
For the Defense - Vol. 4, Issue 4 - 17
For the Defense - Vol. 4, Issue 4 - 18
For the Defense - Vol. 4, Issue 4 - 19
For the Defense - Vol. 4, Issue 4 - 20
For the Defense - Vol. 4, Issue 4 - 21
For the Defense - Vol. 4, Issue 4 - 22
For the Defense - Vol. 4, Issue 4 - 23
For the Defense - Vol. 4, Issue 4 - 24
For the Defense - Vol. 4, Issue 4 - 25
For the Defense - Vol. 4, Issue 4 - 26
For the Defense - Vol. 4, Issue 4 - 27
For the Defense - Vol. 4, Issue 4 - 28
For the Defense - Vol. 4, Issue 4 - 29
For the Defense - Vol. 4, Issue 4 - 30
For the Defense - Vol. 4, Issue 4 - 31
For the Defense - Vol. 4, Issue 4 - 32
For the Defense - Vol. 4, Issue 4 - 33
For the Defense - Vol. 4, Issue 4 - 34
For the Defense - Vol. 4, Issue 4 - 35
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For the Defense - Vol. 4, Issue 4 - 40
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For the Defense - Vol. 4, Issue 4 - 43
For the Defense - Vol. 4, Issue 4 - 44
For the Defense - Vol. 4, Issue 4 - 45
For the Defense - Vol. 4, Issue 4 - 46
For the Defense - Vol. 4, Issue 4 - 47
For the Defense - Vol. 4, Issue 4 - 48
For the Defense - Vol. 4, Issue 4 - 49
For the Defense - Vol. 4, Issue 4 - 50
For the Defense - Vol. 4, Issue 4 - 51
For the Defense - Vol. 4, Issue 4 - 52
For the Defense - Vol. 4, Issue 4 - 53
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For the Defense - Vol. 4, Issue 4 - 55
For the Defense - Vol. 4, Issue 4 - 56
For the Defense - Vol. 4, Issue 4 - 57
For the Defense - Vol. 4, Issue 4 - 58
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