For the Defense - Vol. 7, Issue 2 - 24

The Pennsylvania Supreme Court, taking note of the
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.
Conclusion
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.
increasing number of prosecutorial misconduct cases,
requested the Criminal Procedure Rules Committee take
into consideration and submit a proposal that would bring
about the long-needed reform in the criminal discovery
process similar to the Michael Morton Act in Texas. The
Court requested the Criminal Procedure Rules Committee
consider and submit a proposal that would greatly expand
criminal discovery. The rule would require prosecutors
to provide " the complete files of all law enforcement
agencies, investigatory agencies, and prosecutors' offices
involved in the investigation of the crimes committee or
the prosecution of the defendant " within 30 days of the
arraignment.34
Despite the growing trend of prosecutorial misconduct
cases in Pennsylvania counties,35
the Rules Committee
rejected the proposal for open file discovery, suggesting
instead to expand the discovery obligations by prosecutors
further than current law. This still falls short of the reform
that is needed to make a significant impact on deterring
prosecutorial misconduct.
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
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.
NOTES:
1
QuattrOne Center, hidden hazardS: PrOSeCutOrial miSCOnduCt ClaimS in
* 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.
PennSylvania, 2000-2016, 10 (2021).
2
424 U.S. 409 (1976).
3 Imbler v. Pachtman, 424 U.S. 409 (1976).
4
See 42 U.S.C. § 1983.
5 Id. at 428.
6 Under the Supreme Court case in Brady v. Maryland, 373 U.S. 83 (1963),
prosecutors have a constitutional obligation to turn over evidence that's
favorable to a defendant-including evidence of innocence-or evidence
that discredits a state's witness-for example, evidence that witness is
receiving a deal in exchange for testimony.
7
Brady v. Maryland, 373 U.S. 83 (1963).
24 For The Defense l Vol. 7, Issue 2
Vol. 4, Issue 4 l For The Defense 9
The increasing trend of prosecutorial misconduct shows
that the Brady Rule has fallen short of its intended purpose
of requiring prosecutors to disclose materially exculpatory
evidence to the defense. A key reason for the increasing
trend in prosecutorial misconduct is the carve-out rule the
United States Supreme Court made preventing prosecutors
from being held civilly accountable for conduct that would
violate a person's due process rights. Another cause is the
failure of a majority of states to enact legislation that would
expand criminal discovery rules.
Imbler v. Pachtman, and its progeny, have all but
negated the intended purpose of the Brady Rule. That
precedent reinforces the idea that prosecutors should not
be personally held accountable, unlike private attorneys,
for conduct such as falsifying evidence, coercing witnesses,
soliciting, and knowingly sponsoring perjured testimony,
withholding exculpatory evidence, and evidence of
innocence. Therefore, it falls upon state supreme courts and
state legislatures to take a more active role in setting strict
guidelines for acceptable conduct during trials.
8 Id. at 87.
9 Id. at 87-88.
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.
10 United States v. Bagley, 473 U.S. 667, 682 (1985).
11
Commonwealth v. Willis, 616 Pa. 48, 51, 46 A.3d 648, 650 (2012).
13 Id. at 48-51.
14 Id.
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15 Commonwealth v. Moose, 529 Pa. 218, 602 A.2d 1265 (1992).
16 Id.
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17 American Bar Association [ABA], Center for Professional Responsibility,
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Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
Id. at Standard 3-1.2.
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3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
4
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).
19 Id. at Standard 3-5.6(a).
20 Id. at Standard 3-5.6(b).
21 Id. at Standard 3-5.4 (c).
22 Pa. R. Cr. P. 305(B)(1).
23 Commonwealth v. Brown, 649 Pa. 293, 196 A.3d 130 (2018).
24
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).
Commonwealth's Response to Petition for Collateral Relief at 3,
Commonwealth v Brown, 649 Pa. 293 (2018).
25
5
Id. at 3.
26 Id. at 4.
27 Commonwealth v. Bagnall, 235 A.3d 1075, 1077 (Pa. 2020).
28 Commonwealth v. Correa, t, 444 Pa. Super. Ct. 621, 664 A.2d 607 (1995).
29
brady_violations_decried_in_kozinski_opinion.
30
ABA Journal. 'Epidemic of Brady violations' decried in Kozinski opinion,
available at: https://www.abajournal.com/news/article/epidemic_of_
Pew Trust: The Justice Project, " Expanded Discovery in Criminal Cases A
Policy Review "
https://www.pewtrusts.org/~/media/legacy/uploadedfiles/
wwwpewtrustsorg/reports/death_penalty_reform/
About the Author
Click here to view and/or print the
expanded20discovery20policy20briefpdf.pdf.
31
full notes section for this article.
Tex. Code Crim. Proc. Art. 39.15(a).
32 https://capitol.texas.gov/tlodocs/83R/billtext/pdf/SB01611F.pdf.
33 Id. at Tex. Code Crim. Proc. Art. 39.15(a).
See Proposed Amendment to Pa. R.CR. P. 573, published Nov. 19.
2019, available at https://www.pacourts.us/storage/rules/Publication%20
Report%20Rule%20573%20Mandatory%20Disclosure%20In%20
Quattrone Center, hidden hazardS: PrOSeCutOrial miSCOnduCt ClaimS in
About the Author
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234/194/56
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#153A5B
#EAC137
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
34
Discovery%20-%20008207.pdf.
35
PennSylvania, 2000-2016 " Prosecutorial Misconduct Opinions by County 14
(2021).
#153A5B
#EAC137
2013, https://www.americanbar.org/groups/criminal_justice/standards/
ProsecutionFunctionFourthEdition.html.
18
22/58/92
234/194/56
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See Weatherford v. Bursey, 429 U.S. 545, 559 (1977) (It does not
follow from [Brady] that the Prosecution must reveal before trial the
names of all witnesses who will testify unfavorably. There is no general
constitutional right to discovery in a criminal case, and Brady did not
create one " .
12
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.
Share this article
Yashar Alizadeh is a criminal
defense and immigration
attorney at the Law Office of
Wana Saadozi, Esq. in Media,
Pennsylvania. He earned a
Bachelor's degree in Finance at
Western Michigan University
in Michigan, a Masters of
Business Administration from
Keller Graduate School of
Management in Chicago, and
a Juris Doctorate at Mitchell Hamline School of Law in
St. Paul Minnesota.

https://www.americanbar.org/groups/criminal_justice/standards/ProsecutionFunctionFourthEdition.html https://www.americanbar.org/groups/criminal_justice/standards/ProsecutionFunctionFourthEdition.html https://www.abajournal.com/news/article/epidemic_of_brady_violations_decried_in_kozinski_opinion https://www.abajournal.com/news/article/epidemic_of_brady_violations_decried_in_kozinski_opinion https://www.pewtrusts.org/~/media/legacy/uploadedfiles/wwwpewtrustsorg/reports/death_penalty_reform/expanded20discovery20policy20briefpdf.pdf https://www.pewtrusts.org/~/media/legacy/uploadedfiles/wwwpewtrustsorg/reports/death_penalty_reform/expanded20discovery20policy20briefpdf.pdf https://www.pewtrusts.org/~/media/legacy/uploadedfiles/wwwpewtrustsorg/reports/death_penalty_reform/expanded20discovery20policy20briefpdf.pdf https://capitol.texas.gov/tlodocs/83R/billtext/pdf/SB01611F.pdf https://www.pacourts.us/storage/rules/Publication%20Report%20Rule%20573%20Mandatory%20Disclosure%20In%20Discovery%20-%20008207.pdf https://www.pacourts.us/storage/rules/Publication%20Report%20Rule%20573%20Mandatory%20Disclosure%20In%20Discovery%20-%20008207.pdf https://www.pacourts.us/storage/rules/Publication%20Report%20Rule%20573%20Mandatory%20Disclosure%20In%20Discovery%20-%20008207.pdf

For the Defense - Vol. 7, Issue 2

Table of Contents for the Digital Edition of For the Defense - Vol. 7, Issue 2