For the Defense - Vol. 7, Issue 4 - 8

Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
construction workers are men, but it would be illogical to
infer that any given person is a construction worker simply
because they are a man.
* 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.
The Lesson: Do Autopsy Opinions Belong in Court?
* 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.
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
Most importantly, some responses to our study were quite
candid about the limitations of manner of death decisions.
A letter co-authored by 86 prominent forensic pathologists10
including NAME leadership clarified that " manner
determination is not a 'scientific' determination, " such that
" there is no 'right' answer " and " the goal is consistency
rather than some nonexistent criteria for correctness. " That
same letter goes on to explain that manner determination is
a " tool for aggregate statistics [that] often does not fit well
in court, " where it is " misuse[d]. " Other responses expressed
similar sentiments including that manner determinations
are intended " for the purpose of public health statistics,
not courtroom presentation, " 11
File your client's motion after the
and that " any individual
determination is questionable. " 12
But the reality is that manner of death opinions are
* 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.
The Solutions: Transparency and Protective Measures
In the courtroom, medical examiners should be more
forthright about the basis for their decisions. If an expert rules
a death a " homicide " solely because the child was Black and
in the care of an unrelated man, then the expert should say
that, and let factfinders decide whether their opinion should
be trusted. Otherwise, factfinders might incorrectly assume
that their opinion is based on medical information and give
it undue weight. To facilitate this process, we have developed
and published a simple worksheet that examiners can use to
document what information they considered and when, thus
creating transparency about whether they took appropriate
steps to protect against bias.13
* 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.
8 For The Defense l Vol. 7, Issue 4
In the laboratory, medical examiners should follow the lead
of other forensic disciplines by avoiding information that
could improperly color their judgments. We may disagree over
what is relevant, and it may vary from case to case, but we
need to start somewhere, and thankfully, some have already
begun. At the Chauvin trial, Dr. Andrew Baker, the medical
examiner who performed George Floyd's autopsy, was asked
if he watched the cell phone video of Mr. Floyd's death before
performing his autopsy. Baker replied that he " intentionally
chose not to " watch the video " until [he] had examined Mr.
presented in court-and typically without these important
caveats-such that they may dangerously mislead factfinders.
To be clear, I am not suggesting that medical examiners are
knowingly deceptive or should never testify in court; but,
given what we now know about the pernicious effects of
cognitive bias, they have a responsibility to adopt simple
procedural changes that will benefit the reliability of their
judgments.
Some pathologists have argued that relying on extraneous
information benefits their accuracy-which, even if true,
undercuts their expertise and independence. To illustrate: a
layperson might show high accuracy in comparing fingerprints
if they always base their judgments on knowledge of DNA
results, but that doesn't make them a fingerprint expert.
Similarly, even if extraneous information leads to a correct
judgment, that judgment no longer holds any independent
probative value.
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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NOTES:
1
4
2 Saul M. Kassin et al., The Forensic Confirmation Bias: Problems,
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
#153A5B
#EAC137
3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
Itiel E. Dror & David Charlton, Why Experts Make Errors, 56 J. FoRensIC
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).
Ident. 600 (2006).
4
And lAw (David DeMatteo & Kyle C. Scherr eds., forthcoming 2023).
5
www.justice.gov/archives/ncfs/page/file/641676/.
6
FoRensIC sCI. 1751 (2021).
7
5
Forensic Expertise, in tHe FIngeRpRInt souRCebook 15-1 (Alan McRoberts ed.,
6 Pa.R.Crim.P. Rule 600(D)(1).
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.
Forensic Pathology Decisions', 66 J. FoRensIC sCI. 2554 (2021).
8
2011).
9
About the Author
Click here to view and/or print the
Forensic Pathology Decisions', 66 J. FoRensIC sCI. 2541 (2021).
11
66 J. FoRensIC sCI. 2549 (2021).
12
full notes section for this article.
Pathology Decisions', 66 J. FoRensIC sCI. 2563 (2021).
13
Forensic Science Examiners, 6 J. Appl. Res. mem. Cogn. 452 (2017).
10
Perspectives, and Proposed Solutions, 2 J. Appl. Res. mem. Cogn. 42 (2013).
3
See Jeff Kukucka & Itiel E. Dror, Human Factors in Forensic Science:
Psychological Causes of Bias and Error, tHe oxFoRd HAndbook oF psyCHology
National Commission on Forensic Science, Ensuring that Forensic
Analysis Is Based Upon Task-Relevant Information (2015), at 1, https://
Itiel E. Dror et al., Cognitive Bias in Forensic Pathology Decisions, 66 J.
James R. Gill et al., Commentary on Dror et al. 'Cognitive Bias in
Thomas A. Busey & Itiel E. Dror, Special Abilities and Vulnerabilities in
Jeff Kukucka et al., Cognitive Bias and Blindness: A Global Survey of
Brian L. Peterson et al., Commentary on Dror et al. 'Cognitive Bias in
Brian L. Peterson et al., Peterson et al. Response to Authors' Response,
William Oliver, Commentary on Dror et al. 'Cognitive Bias in Forensic
Adele Quigley-McBride et al., A Practical Tool for Information
Management in Forensic Decisions: Using Linear Sequential UnmaskingExpanded
(LSU-E) in Casework., 4 FoRensIC sCI. Int. syneRgy 100216 (2022).
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
See Daniel Kahneman et al., NOISE: A FlAw In HumAn Judgment (2021).
Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
NOTES:
1
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Floyd, " because he " did not want to bias [his] exam by going
in with any preconceived notions. "
When that happened, I was out to dinner with my wife,
and my phone started to ping uncontrollably with supportive
texts and e-mails from colleagues who saw Baker's testimony
as a sign that, despite the initial chilly reception, some
medical examiners were warming to the idea of taking steps
to minimize bias in their work. In other words, our work had
begun to make a difference.
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.
science errors, with an emphasis on cognitive bias, and he
regularly testifies as an expert witness on these issues.
Share this article
Vol. 4, Issue 4 l For The Defense 9
Dr. Jeff Kukucka, Ph.D., is an
Associate Professor of Psychology
at Towson University in Towson,
Maryland. He completed his Ph.D. at
the CUNY Graduate Center in 2014,
with a focus in Psychology & Law.
He is also Vice Chair of the OSAC
for Forensic Science, Human Factors
Task Group. His work examines the
psychological causes of forensic
http://www.justice.gov/archives/ncfs/page/file/641676/ http://www.justice.gov/archives/ncfs/page/file/641676/

For the Defense - Vol. 7, Issue 4

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