For the Defense - Vol. 5, Issue 2 - 31

Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
Pa. R. Crim.right.
P. 231
30 Grand Jury (May 2019)
constitutional

*

Using the strategy above, people both in and
outside my office have had tremendous success with
the status
of a witness
may it
beplain
relevant
Ruleinstances,
600 motions.
Oftentimes,
just making
and
may
be
part
of
the
Constitutional
rights
to the Commonwealth that you intend to seriouslyto
Request
discovery
early
andthe
in writing.
That
way, to
PACDL
suggested
that
proposed
changes
confront
adverse
witnesses
and/or
present
litigate
this issue
can get
you results.
It istoonly
one a
if the
the Grand
Commonwealth
fails
to
provide
requested
Jury Procedure would still improperly
defense. For example, the immigration status
weapon in your arsenal, but because a win means
discovery,
any
requiredpresumption
continuance permitting
will be on
invert the
statutory
of a government cooperating witness is often
discharge, it is a potent weapon that should never
witnesses
to disclose
their to
testimony
bywith
stating
relevant to establish a motive to blame others
the
prosecution.
If you have
follow-up
the
be overlooked.
they
should
ordinarily
be
sworn
to
secrecy,
do
not
[the accused]. PACDL urged language be added
Commonwealth about discovery they have failed to
address
opposition
to the
stating that "Nothing in these comments shall be
hand
over,PACDL's
be sure longstanding
to memorialize
such requests
in
NOTES:
practice
of
routinely
requiring
counsel
to
utter
interpreted as restricting a criminal defendant's
a writing such as an email.
1
Commonwealth
v. Mills,
323 (Pa.
2017). and/
secrecy oaths, and fail to further improve the
constitutional
right162
to A.3d
present
a defense
2
U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
If rules
a continuance
is
required
due
to
the
in a way that would ensure witnesses and
or to confront adverse witnesses." Additionally,
3
Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
Commonwealth's
failure
diligence,
be sure to
their counsel could
notofobtain
information
to
4 we urged that the revised comment note that a
Barker v. Wingo, 407 U.S. 514, 530 (1972) (articulating the
put
that they
on the
at the time the continuance
which
arerecord
entitled.
preferred approach
is to litigate
these904
matters
constitutional
test); Commonwealth
v. Preston,
A.2d
1,
10
(Pa.
Super.
Ct.
2006)
(the
Barker
test
is
an
entirely
pre-trial.
is requested. Even if the judge does not rule in
separate analysis from Rule 600 and therefore needs to be
Pa.
R. Crim.
P. 573at(January
2020) the issue for
your
favor,
you have
least preserved
raised separately).
Appellate
appeal.
5
Pa.R.Crim.P. Rule 600(2)(a); see also Commonwealth
PACDL offered support for the proposed
v. Kearse, 890 A.2d 388, 395 (Pa. Super. Ct. 2005) (no
All
motionstotoclarify
dismiss
pursuant
to Rule
600 be
must
be
changes
what
material
should
turned
Pa. R.A.P.
121,
(April
2019)
"prejudice"
need
be etc.
shown
to obtain
Rule 600 dismissal).
31
File and
youroffered
client's motion
after the
made
While Rule 600 has a more definitive time period, the sole
overin
towriting.
the defense
suggestions
focus
of Rulesupported
600 is on the
action
of the Commonwealth.
365-day
period
elapsed.isIfprovided
the trial judge
rules
to ensure
thathas
discovery
in a timely
PACDL
the
proposed
adoption of
Thus, a constitutional argument should be forwarded
against
you
and
subsequently
the
Commonwealth
manner.
the new rules and the amendment to existing
when a delay prejudices a defendant and that delay was
causes another substantial period of delay, file
rules. The
adoptions
and amendments clarified
primarily
caused
by the courts.
6 the practice of filing electronically, allowing pro
a Evidence
new Rule 600 motion based on this additional
Pa.R.Crim.P. Rule 600(D)(1).
se litigants to file documents electronically while
time and litigate it prior to any trial to preserve an
Pa. R. Ev.
901additional
(July 2019)time period.
ensuring
thatto
proview
se litigants
who
may not
Click here
and/or
print
thehave
objection
to the
access
to
the
necessary
technology
can
still
full notes section for this article. file
At the
Ruledid
600not
hearing,
after
defense has
PACDL
oppose
thethe
proposed
paper documents, if necessary.
made
a prima facie
showing that
theof
defendant
amendment
to Pennsylvania
Rule
Evidence 901
has
brought
to trial within
365the
days,
as not
the been
changes
appropriately
reflect
need for
Pa. R.A.P. 302 Jury Instructions (February 2020)
the
Commonwealth
bears
the burden ofof
proving
clear
guidance in the
authentication
digital
that
they have nonetheless acted with diligence.
evidence.
PACDL expressed concern that a new proposed
rule related to preservation
of appeals
onanjury
This means that after the defense has made such
Katherine
Ernst is
Pa.
R.
Ev.
104
(July
2019)
instructions
would
be
overly
complex
for
criminal
a prima facie showing, it is the Commonwealth
appellate attorney with
the
trials. We suggested a simplified process for
who should be required to put on its evidence
Montgomery County Public
supported
the
proposed
Comment
criminal jury trials.
andPACDL
the defense
should
only
argue after
the
Defender's Office. She
to
Pennsylvania
Rule
of
Evidence
104.
The
Commonwealth has done so. Essentially, a Rule 600
handles appeals from all
procedural
guidance
provided
hearing
should
proceedproposed
in form almost
identically
units, juvenile to homicide,
to ensure
that allIfparties,
including
toclarity
a suppression
hearing.
the judge
asks you
witnesses in criminal matters, will be aware
and she also formulates
to argue prior to the Commonwealth's evidence,
of the right against self-incrimination and the
legal strategy for pre-trial
make it clear that you could not possibly argue
Jordan
Barnett
is
the
Chief
of the Motions
Unit at
procedural guidance will hopefully ensure a
and trial units. Katherine
graduated
Magna Cum
onuniform
behalf of
your
client
until
you
know
what
the
the Defender Association of Philadelphia. He has
application of these rights across the
Laude from Loyola Law School, New Orleans
Commonwealth's
worked at the Defender Association for the past
Commonwealth.evidence of diligence is.
in 2007 and was on law review. She practiced
17 years. He was an E. Barrett Prettyman Fellow
If the Commonwealth appears at the Rule 600
at Kaufman, Coren & Ress in Philadelphia out
Pa.
R.
Ev.
401
(April
2019)
in the Criminal Defense Clinic at the Georgetown
hearing and does not present any evidence that
of law school, and thereafter did work in the
University Law Center and worked as a staff
it acted with diligence-for instance, they did not
intersection
ofthe
horseracing
law and
§1983 for
a
PACDL supported the proposed Comment to
attorney at
Orleans Public
Defender
in 2007.
bring in the officer to testify to the attempts made
number of years before following her passion
Pennsylvania Rule of Evidence 401 which clarified
to find and apprehend the defendant-argue that
that, generally, a litigant's or a witness's race,
for indigent criminal defense.
they have not met their burden because the burden
sex, gender identity or expression, religion,
ofnational
proof includes
burden of production
and
origin,the
socio-economic
status, marital
Share this article
arguments
of counsel
are not evidence.
status or political
affiliation
is irrelevant and
inadmissible. However, PACDL noted that the
proposed rule failed to recognize that, in many
Vol. 4, Issue 4 l For The Defense
9
PANTONE

2955C

7406C

CMYK

90/78/39/30

9/22/91/0

RGB

22/58/92

234/194/56

HEXIDECIMAL

*

*

*

#153A5B

#EAC137

About the Author
PANTONE

2955C

7406C

CMYK

90/78/39/30

9/22/91/0

RGB

22/58/92

234/194/56

HEXIDECIMAL

About the Author
#153A5B

*

#EAC137

Vol. 5, Issue 2 l For The Defense

31
For the Defense - Vol. 5, Issue 2

Table of Contents for the Digital Edition of For the Defense - Vol. 5, Issue 2
