For the Defense - Vol. 5, Issue 3 - 11

testify
wearing
a clear
face shield
live at
trial,
the with
Commonwealth
likely
will
seek
Discuss
this
waiver
your client with
the
same
Using the
strategy
above,
people
both rather
in andthan
a mask, although some medical professionals
pretrial video deposition testimony from these
seriousness you would discuss the waiver of any
outside my office have had tremendous success with
believe that a face shield used without a mask
witnesses pursuant to Pennsylvania Rules of
constitutional right.30
Rule 600 motions.
Oftentimes,
just
makingtransmission.
it plain
is insufficient
to prevent
Covid-19
Criminal Procedure 500 and 501. However, those
to the Commonwealth
youmasks
intend
seriously
If face shields that
without
areto
permitted,
Rules discovery
require that
theand
defendant
be That
present
during
Request
early
in writing.
way,
litigate
this
issue
can
get
you
results.
It
is
only
one
counsel
should
ask
the
court
to
mandate
their
theCommonwealth
deposition. Suchfails
testimony
can requested
be introduced
if the
to provide
weapon inuse
your
but
because a should
win means
byarsenal,
witnesses.
Practitioners
also
pursuant
torequired
Pennsylvania
Rule of Evidence
discovery,
any
continuance
will be on804(b)(1),
consider
asking
courts
to
place
clear
plexiglass
discharge,
it
is
a
potent
weapon
that
should
never
permitsIfintroduction
of prior testimony
thewhich
prosecution.
you have to follow-up
with the if
barriers around the witness stand, which
54
be overlooked.
the
declarant
is
unavailable.
Commonwealth
about
discovery
theyclient
havewith
failed
tosame
wouldthe
permit
the witness
topeople
testify without
Discuss this
waiver
with your
the
Using
strategy
above,
both inaand
hand over,
be
sure
to
memorialize
such
requests
in
mask
and
enable
unimpeded
observation
of
seriousness you would discuss the waiver of any NOTES:outside my office have had tremendous success
with
Conclusion
a writing
such
as
an
email.
the
witness's
facial
expressions
and
demeanor.
30
1
constitutional right.
Rule
600
motions.
Oftentimes,
just
making
it
plain
Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
* onStthe
Practitioners
should consider
the implications
2
U.S.
Cto
. Amend
. VI; PA. CONST. that
art. 1,you
§ 9. intend to seriously
Commonwealth
If a continuance
is
required
due
to
the
Given
the
significant
public
health
concerns
* Request discovery early and in writing. That way, 3 Commonwealth
of successfully
barring
masked
witnesses,
v. DeBlase,
665get
A.2d
427,
431
(Pa.It1995).
litigate this
issue can
you
results.
is only one
Commonwealth's
failure
of diligence,
bethe
surecourts')
to
at issue
and
the
government's
(and
4
potential
significant
delay.
if the
Commonwealth
fails to
provide
requested
Barker v. including
Wingo, 407the
U.S.
514, 530 for
(1972)
(articulating
the
weapon
in one
your
arsenal, has
but
because904
athat
win
means
tothe
restart
criminal
trials
without
waiting
putdesire
thatdiscovery,
on
record
at
the
time
the
continuance
At
least
researcher
suggested
constitutional
test);
Commonwealth
v.
Preston,
A.2d
any required continuance will be on
discharge,
it
is
a
potent
weapon
that
should
Super. Ct. 2006)
(the witnesses
Barker testmight
is an entirely
for athe
potential
vaccine,
it ishave
likely
that
courts
is requested.
Even if
the Ifjudge
does
not
rule
in with the 1, 10 (Pa. permitting
masked
work in never
prosecution.
you
to
follow-up
separate
analysis
from
Rule
600
and
therefore
needs
be overlooked.
will
implement
COVID-19
mitigation
measures,
defendants' favor by reducing jurors' falseto be
your
favor,
you have
at least
issue
forfailed to
Commonwealth
aboutpreserved
discoverythe
they
have
raised separately).
assumptions about witness credibility.
such as permitting masked witness testimony
appeal.
hand over, be sure to memorialize such requests in5 Pa.R.Crim.P. Rule 600(2)(a); see also Commonwealth
*
Practitioners
should consider whether it is
and remote testimony, and remote proceedings.
NOTES:
v. Kearse,
890 A.2d 388, 395 (Pa. Super. Ct. 2005) (no
a writing
such as
an email.
All Although
motions
tosuch
dismiss
pursuant
to
Rule
600
must
be
1 preferable to consent to the use of live, twomeasures infringe upon the
Commonwealth
v. Mills,
162 A.3d
2017).
"prejudice"
need be shown
to obtain
Rule323
600(Pa.
dismissal).
31
2 way videoconference testimony or force the
File
your
client's
motion
after
the
made
in
writing.
U.S.
C
onSt
.
A
mend
.
VI;
PA.
CONST.
art.
1,
§
9.
While
Rule
600
has
a
more
definitive
time
period,
the
sole
defendant's
right
to
physically
confront
witnesses,
* If a continuance is required due to the
3
Commonwealth
v.
DeBlase,
665
A.2d
427,
431
(Pa. 1995).
government
to
introduce
recorded
video
focus
of
Rule
600
is
on
the
action
of
the
Commonwealth.
365-day
period
has
elapsed.
If
the
trial
judge
rules
these
protocols may be
permitted
in lightbeofsure to
Commonwealth's
failure
of diligence,
4
Barker
v. Wingo,
407 U.S.should
514, 530
(1972)
(articulating
the
Thus,
a
constitutional
argument
be
forwarded
deposition
testimony,
which
may
not
be
as
against
youthat
and
subsequently
the
Commonwealth
the public
safety
concerns.
Practitioners
put
on
the
record at
the
time thewould
continuance when a delay
constitutional
test);
Commonwealth
Preston,
prejudices
a defendant
and thatv. delay
was904 A.2d
engaging
to
the
jury.
benefit
fromsubstantial
understanding
that:
causes
another
of delay,
10 (Pa.by
Super.
2006) (the Barker test is an entirely
primarily1,caused
the courts.
is requested.
Even ifperiod
the judge
does file
not rule in
* Testimony
by aCt.
witness
who is both remote
6
a new Rule
600
motion
based
on
this
additional
separate
analysis
from
Rule 600 and therefore needs to be
Pa.R.Crim.P.
Rule
600(D)(1).
your favor, you have at least preserved the issue for
and masked
likely will not pass the Craig test,
raised
separately).
The
Confrontation
under
time * and
litigate
it prior toClauses
any trial
to the
preserve an
appeal.
5 because the public health policy justification
Pa.R.Crim.P.
Rule
600(2)(a); see also Commonwealth
and U.S.time
Constitutions
Clickv.for
here
to
view
and/orbyprint
the not(no
objectionPennsylvania
to the additional
period. are
the
mask
is
undermined
the witness
Kearse,
890
A.2d
388, 395 (Pa.
Super.
Ct. 2005)
identical,
and
the
federal
right
applies
* All motions to dismiss pursuant to Rule 600 must be full notes
this
article.
"prejudice"
need
be for
shown
to obtain
Rule 600 dismissal).
being insection
the
courtroom.
At the Rule
600
hearing,
after
the defense
has
to proceedings
in31state
(i.e., themotion
File court
your
client's
after the
made
in writing.
While Rule 600 has a more definitive time period, the sole
Pennsylvania
Constitution
made a365-day
prima
facie
showing
thatdoes
the
defendant
focus of Rule 600 is on the action of the Commonwealth.
period
has elapsed.
If not
theafford
trial judge rules NOTES:
additional
protections).
has notagainst
been brought
to
trial
within
365
days,
Thus,
a constitutional
beCOVID-19
forwarded
1
CDC, CDC
Calls
on Americans to argument
Wear Masks should
to Prevent
you and subsequently the Commonwealth
*
The
Confrontation
Clause
does
not
guarantee
when
a
delay
prejudices
a
defendant
and
that
the Commonwealth
bears
the burden
of proving
Spread (July 14, 2020), available at https://www.cdc.gov/media/delay was
causes
another
substantial
period
of delay, file
primarily caused by the courts.
a
defendant
the
right
to
have
all
witnesses
releases/2020/p0714-americans-to-wear-masks.html.
that they
haveRule
nonetheless
acted
withon
diligence.
6
aagainst
new
motion
based
this additional
Pa.R.Crim.P. Rule 600(D)(1).
him600
provide
in-person
testimony
under
This means
that
theitdefense
such
Katherine Ernst is an
time
and after
litigate
prior tohas
anymade
trial to
preserve an
all circumstances.
a prima
facie
showing,
it
is
the
Commonwealth
Click here to
view and/or
the
appellate
attorney print
with the
the additional
* objection
Citation totofavorable
federal time
circuitperiod.
court
who should
be required
put on itsand
evidence
full notes section
for
this
article.
precedent
will be to
appropriate
persuasive
Montgomery County Public
* At
the Rule
600controlling)
hearing,
after
the
defensetohas
and the
defense
should
only argue
after
the
(although
not
when
advocating
Defender's Office. She
made
a prima
facie
showing
that
the
Commonwealth
has
done
so.
Essentially,
a
Rule
600
preserve
a client's
confrontation
rights
indefendant
state
handles appeals from all
notasbeen
brought
to is
trial
within
365 days,
court,
the federal
right
at issue.
hearinghas
should
proceed
in form
almost
identically
units,Carolyn
juvenileH.
toKendall
homicide,
the apply
burden
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Craighearing.
framework
likely
will
is
to a suppression
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the
judge
asks youof proving
and she
also formulates
to
interference
with
any
element
of
the
a
Principal
in
Post
&
that
they
have
nonetheless
acted
with
diligence.
to argue prior to the Commonwealth's evidence,
confrontation
right
- not
denialargue
of physical
legal Schell,
strategy
for Internal
pre-trial
P.C.'s
means
that
after
thejust
defense
has
made such
make itThis
clear
that you
could
not
possibly
Katherine
Ernst is an
presence.
Investigations
& White
and trial units. Katherine graduated
Magna
Cum
a prima
facie
showing,
it isknow
the Commonwealth
on behalf
of your
client
until you
what the
appellate
attorney
with the
* who
When
challenging
proposed
testimonial
Collar
Defense
Practice
Laude
from
Loyola
Law
School,
New
Orleans
should
be
required
to
put
on
its
evidence
Commonwealth's
evidence
of diligence
Montgomery County Public
arrangements,
practitioners
shouldis.focus on
GroupShe
in Philadelphia.
and the defense should only argue after the
in 2007 and was on law review.
practiced
Defender's
Office.
She
the
practical
impact
of
the
proposal
on
the
She
conducts
internal
If the Commonwealth
appears
at
the
Rule
600
Commonwealth
has done
so.
Essentially,
a Rule 600 at Kaufman, Coren & Ress in Philadelphia
out
ability
of
the
defendant
and
jury
to
observe
handles
appeals
from
all
investigations
hearinghearing
and does
not present
evidence
thatidentically
should
proceedany
in
almost
of law school, and thereafter did work in the
and interpret/understand
theform
witness's
units,
juvenile
and defends corporations,
officers,
andto homicide,
it actedto
with
diligence-for
instance,
didasks
not you
a suppression
hearing.
If thethey
judge
demeanor.
intersection
of
horseracing
law
and
§1983
for a
other individuals facing criminal
and civil
and she also
formulates
bring* intothe
officer
to
testify
to theasking
attempts
made
argue
prior
to
theconsider
Commonwealth's
evidence, number of years before following her passion
Practitioners
should
the court
investigation. Ms. Kendall
canstrategy
be reached
legal
for at
pre-trial
to find make
and
apprehend
the
defendant-argue
to specify
or restrict
the
type ofnot
mask
thatthat
can
it clear
that
you
could
possibly
argue
for indigent
criminal defense.
ckendall@postschell.com.
and trial units. Katherine graduated Magna Cum
they have
met
burden
because
the
burden
benot
worn
by
ayour
witness
to one
that
covers
only
on
behalf
oftheir
client
until
you
know
what the
of proofCommonwealth's
includes
production
andis.
the
mouththe
andburden
nose
orof
is more
Laude from Loyola Law School, New Orleans
evidence
of close-fitting
diligence
so that
facial expressions
are (more) visible.
Share
this
article
arguments
of counsel
are not evidence.
in 2007 and
was on
law review. She practiced
* IfCourts
the Commonwealth
appears
atwitnesses
the Rule to
600
may permit or even
require
at Kaufman, Coren & Ress in Philadelphia out
hearing and does not present any evidence that
Vol.
5,and
Issue
3 l The
For Defense
The
Defense
11
of law
school,
did
work9 in the
Vol.
4, Issue
4 lthereafter
For
it acted with diligence-for instance, they did not
intersection of horseracing law and §1983 for a
PANTONE

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234/194/56

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#EAC137

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About the Author

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About the Author

https://www.cdc.gov/media/releases/2020/p0714-americans-to-wear-masks.html https://www.cdc.gov/media/releases/2020/p0714-americans-to-wear-masks.html https://nxt-staging-books.s3.amazonaws.com/nxtbooks/PACDL/FORTHEDEFENSE_vol5_issue3_2020/src/docs/Notes_Confronting_New_Reality.Kendall.Final.pdf

For the Defense - Vol. 5, Issue 3

Table of Contents for the Digital Edition of For the Defense - Vol. 5, Issue 3