For the Defense - Vol. 6, Issue 2 - 9

Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
* Request discovery early and in writing. That way,
if the Commonwealth fails to provide requested
discovery, any required continuance will be on
the prosecution. If you have to follow-up with the
Commonwealth about discovery they have failed to
hand over, be sure to memorialize such requests in
a writing such as an email.
Willie Veasy's case is a good example.11
* If a continuance is required due to the
Commonwealth's failure of diligence, be sure to
put that on the record at the time the continuance
is requested. Even if the judge does not rule in
your favor, you have at least preserved the issue for
appeal.
365-day period has elapsed. If the trial judge rules
against you and subsequently the Commonwealth
causes another substantial period of delay, file
a new Rule 600 motion based on this additional
time and litigate it prior to any trial to preserve an
objection to the additional time period.
investigator will often explain these inconsistencies
away. A good tactic is to look at the nonsense details
and ask: (1) Is this something that may have provided
some sort of independent corroboration? And, if so,
(2) did the investigator conduct any follow-up? If not,
this may be good fodder for cross examination.
Though his
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
confession contained accurate details, there were also
several glaring inaccuracies. Willie said that one of
his cohorts spoke Spanish to the drug dealer during
the robbery, which was not true. He also got wrong:
(1) the color of the car; (2) the type of weapon used
to kill the bystander; (3) the amount of money stolen;
(4) and even the actions of others in the car with him
(who he said were acting like " professional hit men " ).
Though Willie identified one of the shooters by name,
that person was never interviewed by detectives.
While I have provided just a basic overview of the
causes of false confessions and the evaluation of the
reliability of statement evidence, I hope that it will
assist defense lawyers when faced with the possibility
of a bad confession. Prior to handling such a case, it
is worthwhile to do your homework. Researching the
training and reputation of the detective is key.
File your client's motion after the
* At the Rule 600 hearing, after the defense has
made a prima facie showing that the defendant
has not been brought to trial within 365 days,
the Commonwealth bears the burden of proving
that they have nonetheless acted with diligence.
This means that after the defense has made such
a prima facie showing, it is the Commonwealth
who should be required to put on its evidence
and the defense should only argue after the
Commonwealth has done so. Essentially, a Rule 600
hearing should proceed in form almost identically
to a suppression hearing. If the judge asks you
to argue prior to the Commonwealth's evidence,
make it clear that you could not possibly argue
on behalf of your client until you know what the
Commonwealth's evidence of diligence is.
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NOTES:
1
https://www.law.umich.edu/special/exoneration/Pages/
casedetail.aspx?caseid=5752.
2
D. Kim Rossmo and Joycelyn M. Pollock, Confirmation Bias and
Other Systemic Causes of Wrongful Convictions: A Sentinel Event
Perspective, 11 NorthwesterN UNiversity Law review, no. 2 (2019).
3
No Proof to the Contrary, PsychoLogy, crime & Law 21 (2014).
4
64 crimiNaL iNterrogatioN aNd coNfessioNs 187 (5th ed. 2013).
5
Aldert Vrij, Christian A. Meissner, and Saul M. Kassin, Problems
in Expert Deception Detection and the Risk of False Confessions:
* If the Commonwealth appears at the Rule 600
hearing and does not present any evidence that
it acted with diligence-for instance, they did not
bring in the officer to testify to the attempts made
to find and apprehend the defendant-argue that
they have not met their burden because the burden
of proof includes the burden of production and
arguments of counsel are not evidence.
1393 (2013).
6
and%20Assoc%20-%20Position%20Paper.pdf.
7
Fred E. Inbau, John E. Reid, Joseph P. Buckley & Brian C. Jayne,
Gregory P. Scholand, Re-Punishing the Innocent: False
Confessions as an Unjust Obstacle to Compensation for the
Wrongfully Convicted, 63 case westerN reserve UNiversity Law review
The Reid Technique of Interviewing and Interrogation, https://
web.williams.edu/Psychology/Faculty/Kassin//files/Reid%20
Martin Tankleff: Other New York False Confession Cases, The
National Registry of Exonerations, https://www.law.umich.edu/
special/exoneration/Pages/casedetail.aspx?caseid=3675.
Additionally, more attorneys are sharing their
experiences in handling such cases and their cross
examinations. In the long run, successful attacks on
accusatory interrogations will help push departments
to adopt more scientifically based interviewing
methods and prevent the abuses that we have seen so
often in the past.
Using the strategy above, people both in and
outside my office have had tremendous success with
Rule 600 motions. Oftentimes, just making it plain
to the Commonwealth that you intend to seriously
litigate this issue can get you results. It is only one
weapon in your arsenal, but because a win means
discharge, it is a potent weapon that should never
be overlooked.
crimiNaL iNterrogatioN aNd coNfessioNs 341 (5th ed. 2013).
9
& Associates 93 (2012).
10
iNtrodUctioN to crime sceNe recoNstrUctioN 320 (3rd ed. 2008).
11
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The National Registry of Exonerations, available at https://
www.law.umich.edu/special/exoneration/Pages/casedetail.
aspx?caseid=5624
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Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
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3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
4
About the Author
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Barker v. Wingo, 407 U.S. 514, 530 (1972) (articulating the
constitutional test); Commonwealth v. Preston, 904 A.2d
1, 10 (Pa. Super. Ct. 2006) (the Barker test is an entirely
separate analysis from Rule 600 and therefore needs to be
raised separately).
Pa.R.Crim.P. Rule 600(2)(a); see also Commonwealth
v. Kearse, 890 A.2d 388, 395 (Pa. Super. Ct. 2005) (no
" prejudice " need be shown to obtain Rule 600 dismissal).
While Rule 600 has a more definitive time period, the sole
focus of Rule 600 is on the action of the Commonwealth.
Thus, a constitutional argument should be forwarded
when a delay prejudices a defendant and that delay was
primarily caused by the courts.
6 Pa.R.Crim.P. Rule 600(D)(1).
5
About the Author
Click here to view and/or print the
full notes section for this article.
Jim Trainum (detective - retired)
was with the Washington, D.C.
Metropolitan Police Department
for a total of 27 years - the last
19 of which he was assigned to
the homicide branch. During
that time, in 1994 he obtained a
false confession in a high-profile
homicide case. This caused
him question not only what he did that led to the false
confession, but how did the subject " know " so many
inside facts about the case. He used what he learned to
help educate others on the causes of false confessions,
the proper evaluation of confession evidence, and the
role confirmation bias plays in investigative failures.
and trial units. Katherine graduated Magna Cum
Laude from Loyola Law School, New Orleans
in 2007 and was on law review. She practiced
at Kaufman, Coren & Ress in Philadelphia out
of law school, and thereafter did work in the
intersection of horseracing law and §1983 for a
number of years before following her passion
for indigent criminal defense.
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Vol. 4, Issue 4 l For The Defense 9
Vol. 6, Issue 2 l For The Defense 9
Trainum has presented at universities, police academies,
prosecutor's offices, legislative bodies, and conferences,
and has testified in both local and federal courts across
the country. He is the recipient of the Ethics in Law
Enforcement Award, an honorary Professional Associate
Professorship from Marymount University, and the
2009 Champion of Justice Award from The Innocence
Project. Trainum is the co-author of a chapter in the book
Criminal Investigative Failures in which he details the
circumstances his own false confession. He is the author
of the article " I Did It " - Confession Contamination and
Evaluation that was published in the June 2014 web
edition of The Police Chief magazine as well as his own
book, How the Police Generate False Confessions: An
Inside Look at the Interrogation Room.
Katherine Ernst is an
appellate attorney with the
Montgomery County Public
Defender's Office. She
handles appeals from all
units, juvenile to homicide,
and she also formulates
legal strategy for pre-trial
8 Fred E. Inbau, John E. Reid, Joseph P. Buckley & Brian C. Jayne, 64
Louis C. Senese, Anatomy of Interrogation Themes, John E. Reid
Tom Bevel, Ross M. Gardner, BLoodstaiN PatterN aNaLysis with aN

https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=5624 https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=5624 https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=5624 https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=5752 https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=5752 https://web.williams.edu/Psychology/Faculty/Kassin//files/Reid%20and%20Assoc%20-%20Position%20Paper.pdf https://web.williams.edu/Psychology/Faculty/Kassin//files/Reid%20and%20Assoc%20-%20Position%20Paper.pdf https://web.williams.edu/Psychology/Faculty/Kassin//files/Reid%20and%20Assoc%20-%20Position%20Paper.pdf https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=3675 https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=3675

For the Defense - Vol. 6, Issue 2

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