For the Defense - Vol. 7, Issue 2 - 11

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.
ame
ny
ay,
ed
n
* 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.
radiological, and
evidence.98
h the
led to
sts in
to
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.
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uance
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ust be
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* 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.
Conclusion
5
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e 600
cally
u
ce,
e
the
* 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.
NOTES:
1
(2009).
2
Id.
Deborah Tuerkheimer, The Next Innocence Project: Shaken Baby
Syndrome and the Criminal Courts, 87 WASH. U. L. REV. 1, 1, 5 n.24
2022), https://www.ncbi.nlm.nih.gov/books/NBK499836.
3
Tina Joyce et al., Pediatric Abusive Head Trauma, StatPearlS (Jan. 11,
4 See Shaken Baby Syndrome, Cleveland CliniC (July 1, 2019), https://
secondary family members), and are both male and female. " ).
5
About the Author
Click here to view and/or print the
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HEXIDECIMAL
full notes section for this article.
#153A5B
#EAC137
my.clevelandclinic.org/health/diseases/13779-shaken-baby-syndrome
( " People who are most likely to shake a baby have a direct connection
to the baby (father or mother) or an indirect connection (babysitter,
Tuerkheimer, supra note 1, at 5 n.24 ( " Once a child protection team
has made an SBS diagnosis, suspected perpetrators-those with the
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
For too long, the Commonwealth has used expert
opinions on AHT rooted in junk science to prosecute
parents and caregivers for criminal child abuse.
State v. Nieves illustrates why AHT diagnoses are
unscientific, unreliable, speculative, and highly
prejudicial. Pennsylvania criminal defense attorneys
representing clients facing criminal child-abuse
charges based on AHT diagnoses should use Nieves
as guidance in constructing arguments to preclude
the Commonwealth's experts from testifying at trial
about AHT.
the trial court should still preclude AHT diagnoses
under Frye because the methodology ( " the thing " )
used to diagnose AHT ( " the deduction " ) is not
generally accepted within the medical community.96
Counsel should argue that although AHT/SBS
testimony is unscientific evidence, the Frye test
still applies because the testimony relies on an
unscientific methodology that misleads the jury into
believing otherwise.97
To show that AHT diagnoses
are not generally accepted within the scientific
community, counsel should follow Nieves and present
neurological,
biomechanical
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
Counsel should use this expert evidence
to emphasize that AHT diagnoses have " little to
no connection to scientific or medical testing, "
that " there is no scientific technique or procedure
to confirm AHT a reliable diagnosis, " and that " we
do not know nor will we likely ever know what is
the minimum force necessary to cause subdural
hematomas or any of the other triad symptoms
making up AHT. " 99
File your client's motion after the
In short, because Frye precludes
junk science from trial, courts should preclude
unscientific evidence misleadingly presented as
scientific evidence-like AHT testimony-from
criminal prosecutions for child abuse.
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.
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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
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.
A Penn State alum representing Penn State
students and fellow alums since 2012.
210 West Hamilton Avenue
Suite 330
State College, PA 16801
(814) 689-9139
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
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).
About the Author
Click here to view and/or print the
full notes section for this article.
About the Author
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
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
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. 7, Issue 2 l For The Defense 11
and trial units. Katherine graduated Magna Cum
LdfLlLShlNOl
Ryan Aloysius Smith is
a member of Armstrong
Teasdale's Litigation practice
group, where he counsels clients
on a variety of criminal and civil
matters. A skilled legal writer,
Ryan has served as the primary
author on a variety of motions,
briefs, and petitions, including
successful suppression motions,
motions to dismiss, habeas corpus petitions, bail motions,
evidentiary motions, and motions for return of property.
In his civil practice, Ryan regularly represents clients in a
range of commercial disputes, from breach of contract to
theft of trade secrets and high stakes litigation in heavily
regulated industries.
www.mystatecollegelawyer.com
A strong advocate
for your rights and future
STATE COLLEGE CRIMINAL LAW ATTORNEY
http://www.mystatecollegelawyer.com https://nxt-staging-books.s3.amazonaws.com/nxtbooks/PACDL/FORTHEDEFENSE_vol7_issue2_2022/src/PACDLJune_2022_Magazine_notes_Shaken_baby_syndrom.pdf https://www.ncbi.nlm.nih.gov/books/NBK499836 https://my.clevelandclinic.org/health/diseases/13779-shaken-baby-syndrome https://my.clevelandclinic.org/health/diseases/13779-shaken-baby-syndrome
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