For the Defense - Vol. 6 Issue 3 - 21

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.
* 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.
justice agency, which the agency may move to quash
or seek a protective order from. The agency may also
not respond, in which case a motion to enforce will
be required. If serving a local or municipal police
department, practitioners should consider sending a
copy of the subpoena to the locality's solicitor, i.e., the
lawyer for the town, borough, or city who handles civil
litigation issues for the jurisdiction. If a criminal justice
agency is a party to a civil or criminal case, a discovery
request can be used, and the requesting party can bring
a motion to compel if the material is not produced.
A RTKL request can also be used in parallel with
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
regular discovery procedures. However, this approach
is not recommended for those in litigation for several
reasons. First, although not prohibited, not all courts
look favorably on a litigant's decision to seek discovery
through extra-judicial channels. Second, the RTKL
response timeframe can be longer than those provided
for under normal discovery rules, as the government
is entitled to an automatic 30-day extension and
can seek a longer extension, based on the relevant
circumstances.85
to produce materials in response to a RTKL must be
pursued administratively, rather than before the court
familiar with the litigation, and the need for the
desired information to support the requesting party's
claim or defense.86
the production of non-criminal investigative material
are broader than CHRIA's,87
* 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.
* 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.
* Clearly identify the type(s) of information
being sought, i.e., public record, criminal
history record information, or non-criminal
investigative information, and characterize
it as such in the request. Doing so will make
it easier for a responding criminal justice
agency (and ultimately a reviewing court)
to determine how CHRIA applies to the
request.
* Criminal history record
information
is
available upon request. However,
older
proceedings that did not result in a
conviction and expunged records will not
be provided.
* 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
* Public record information is available
upon request. If the material sought was
made public, such as being included in an
* 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.
Third, appeals of government denials
File your client's motion after the
Finally, the RTKL's restrictions on
which means that a litigant
seeking information pursuant to a RTKL request rather
than in discovery - where only CHRIA and not the RTKL
applies - may not be able to obtain as much information.
No matter the procedural posture, the requesting
party's response should be the same:
Although the
criminal justice agency bears the burden of establishing
that the requested material is protected from disclosure
by CHRIA, practitioners should be prepared to explain to
the court why the requested material can be disclosed
consistent with the agency's CHRIA obligations. To do
so, practitioners should keep in mind the following:
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.
unprotected court filing or a press release,
it cannot be withheld under CHRIA.
Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
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.
* Brady obligations supersede CHRIA's
protections. Prosecutors must provide
investigative and intelligence information,
despite CHRIA's prohibition on dissemination
to individuals and non-criminal justice
agencies, if it constitutes Brady material.
NOTES:
1
* 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.
5
Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
HEXIDECIMAL
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PANTONE
3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
4
2955C
7406C
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).
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.
* To claim material constitutes " investigative "
material that is protected from disclosure,
the government bears the burden of
proving that investigative material was
prepared in connection with investigating a
particular crime. If they cannot do so, or if
the material was created in connection with
a non-criminal investigation, the material is
subject to disclosure.
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2955C
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7406C
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22/58/92
234/194/56
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).
NOTES:
1
* Inclusion of some protected information
in a record does not prevent obtaining any
information. If a record contains disclosable
and protected material, the protected
material can be redacted, and the rest of
the record produced, or the disclosable
material extracted and produced. Counsel
should be prepared to offer suggestions on
how portions of the material sought can be
provided, even if other portions must be
redacted.
CMYK
90/78/39/30
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234/194/56
Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
HEXIDECIMAL
#153A5B
#EAC137
3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
4
PANTONE
2955C
7406C
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).
CMYK
90/78/39/30
RGB
5
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
File your client's motion after the full notes section for this article.
Id.
About the Author
Click here to view and/or print the
NOTES:
1
3
22/58/92
234/194/56
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#153A5B
#EAC137
439 (C.P. 2010).
2
18 Pa.C.S. § 9102.
4 63 A.3d 461, 474 (Pa. Commw. Ct. 2013).
* 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.
In re Pittsburgh Citizen Police Review Bd., 16 Pa. D. & C.5th 435,
5 O'Neal v. Bedford Cnty., 165 A.3d 1058 (Pa. Commw. Ct. 2017).
6 Pa.R.Crim.P. Rule 600(D)(1).
About the Author
About the Author
Click here to view and/or print the
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
full notes section for this article.
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.
be reached at ckendall@postschell.com.
Share this article
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
Carolyn H. Kendall is a
Principal in Post & Schell,
P.C.'s Internal Investigations &
White Collar Defense practice
in Philadelphia. She conducts
internal investigations
and defends corporations,
officers, and other individuals
facing criminal and civil
investigation. Ms. Kendall can
Vol. 6, Issue 3 l For The Defense 21
Vol. 4, Issue 4 l For The Defense 9
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
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.
9/22/91/0
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For the Defense - Vol. 6 Issue 3

Table of Contents for the Digital Edition of For the Defense - Vol. 6 Issue 3

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