For the Defense - Vol. 8, Issue 1 - 9

Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
that reasonable doubt should not be defined.42
usually result in making it any clearer to the minds of the
jury.' " 41
* 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.
NOTES:
1
while Justice Mundy authored a concurring and dissenting opinion.
2
Id. at 628.
3 Id. at 631.
4 Id. at 635-45.
5 Id. at 635.
6 Id. at 636.
Id. (quoting Estelle v. McGuire, 502 U.S. 62, 73 (1991)) (emphasis in
Drummond).
8
* 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.
7
Id. at 637.
9 Holland v. United States, 348 U.S. 121, 140 (1954) (citation omitted).
10 Drummond, 285 A.3d at 637 (citing Holland, 348 U.S. at 140).
11 Id. at 637.
12 Id. at 640 (quoting United States v. Hernandez, 176 F.3d 719, 731 (3d
Cir. 1999)).
13
Id. at 644.
14 Brooks v. Gilmore, No. 15-5659, slip op. at 7 (E.D. Penn. 2017)
(unreported). Although the Brooks decision is not precedential,
the Drummond Court found its analysis " particularly compelling. "
Drummond, 285 A.3d at 644.
15
Id. at 645.
16 Id. at 645-46.
17 Id. at 642.
18 Id.
19 Id. at 643.
20 Id. (emphasis in original).
21 Id.
* 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 Association of Criminal Defense Lawyers, at 7-22.
23
sentiments as well as the context suggest broader application.
24
Id. at 641.
25 813 A.2d 761, 769 (Pa. 2002) (plurality).
26 Drummond, 285 A.3d at 638.
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Vol. 4, Issue 4 l For The Defense 9
Vol. 8, Issue 1 l For The Defense 9
Drummond, 285 A.3d at 638 n. 46. The Court was specifically
referencing emotionally charged analogies in this passage, but its
To be clear, the Court " express[ed] no opinion on whether prejudice
should be presumed under these circumstances. " Id. at 645 n. 54. But,
notably, its discussion of the analogy's impact echoes the argument
set forth in an amicus brief that PACDL submitted in the case,
contending there was structural error because the analogy " alter[ed]
the constitutional framework of the trial proceeding " and thus was
not subject to harmless error analysis. See Brief for Amicus Curiae
22
Moreover, other jurisdictions have taken the position
Therefore,
although it would be a heavy lift under the current state of
the law, an argument can be made that reasonable doubt
should be left undefined for those who wish to pursue it.
Conclusion
Drummond is an important decision with potentially farreaching
implications. It can be put to immediate use to
ward off dubious rhetorical devices that tend to distort or
diminish the burden of proof. It may also provide the basis for
strictly limiting the definition of reasonable doubt, or even
plant the seeds for abolishing the definition of reasonable
doubt altogether. In any event, criminal defense lawyers in
Pennsylvania would do well to scrutinize the Drummond
decision and decide how best to respond the next time a judge
attempts to define reasonable doubt by way of analogy.
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
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.
27 Fisher, 813 A.2d at 770.
28 Id. at 774-75 (Saylor, J., concurring).
29 Id. at 774 (Saylor, J., concurring) (quoting Bumpus v. Gunter, 452 F.
Supp. 1060, 1062 (D.Mass.1978)).
30
Drummond, 285 A.3d at 641.
31 Id. at 642.
32
Drummond includes a list of common analogies- " changing jobs,
buying houses, or assisting in the health decisions of loved ones " -that
the Court viewed as " not comparable, let alone equivalent, to finding
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proof of a crime beyond a reasonable doubt. " Id. at 641.
33
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NOTES:
1
See id. at 645 ( " [T]he 'precious one' instruction allows for an acquittal
to occur only after the jury finds a very high degree of doubt, not just a
90/78/39/30
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2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
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Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
35
reasonable one. " ).
34
Pa.SSJI (Crim) 7.01.
HEXIDECIMAL
3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
4
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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).
(Donohue, J., concurring).
36
90/78/39/30
5
Drummond, 285 A.3d at 641-42. The endorsement is from Victor
v. Nebraska, 511 U.S. 1, 27 (1994) (Ginsburg, J., concurring) (citation
RGB
File your client's motion after the
285 A.3d 625 (Pa. 2022). Justice Wecht authored the majority opinion,
with Chief Justice Todd as well as Justices Dougherty and Brobson
joining the opinion in full. Justice Donohue filed a concurring opinion,
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).
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omitted).
37
See, e.g., Commonwealth v. Green, 581 A.2d 544, 562 (Pa. 1990) (no
#153A5B
#EAC137
prejudice from prosecutor's remarks in closing argument where trial
court " gave the jury instructions that the arguments of counsel were
not evidence or statements of law and that the Commonwealth labored
under the burden of proving guilt beyond a reasonable doubt or the jury
was to acquit " ).
38
See Commonwealth v. Young, 317 A.2d 258, 262-63 (Pa. 1974) ( " Our
cases require that the jury be given a positive instruction fully and
About the Author
Click here to view and/or print the
accurately defining reasonable doubt. " ).
39
full notes section for this article.
Drummond, 285 A.3d at 642.
40 Young, 317 A.2d at 262-63.
41 Drummond, 285 A.3d at 636 (quoting Miles v. United States, 103 U.S.
304, 312 (1880)).
42
See, e.g., People v. Downs, 69 N.E.3d 785, 788 (Ill. 2015) ( " Illinois is
among the jurisdictions that do not define reasonable doubt. This court
has long and consistently held that neither the trial court nor counsel
should define reasonable doubt for the jury. " ); United States v. Hall, 854
F.2d 1036, 1039 (7th Cir. 1988) ( " [A]t best, definitions of reasonable doubt
are unhelpful to a jury, and, at worst, they have the potential to impair
a defendant's constitutional right to have the government prove each
element beyond a reasonable doubt. An attempt to define reasonable
doubt presents a risk without any real benefit. " ).
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
9/22/91/0
Drummond, 285 A.3d at 641. It is worth noting, however, that this
instruction includes two alternatives-only one of which is quoted by the
Drummond majority. In a concurring opinion, Justice Donohue criticized
the second alternative for using the " proactive phrasing " condemned
in Holland, and concluded, " I would specifically disapprove this second
alternative as a basis for the reasonable doubt instruction. " Id. at 646-48
9/22/91/0
22/58/92
234/194/56
7406C
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.
Brian A. McNeil is a Senior Assistant
Public Defender at the York
County Public Defender's Office.
He represents indigent criminal
defendants in direct appeals
and PCRA matters. He moved to
Pennsylvania in 2016, after 11 years
at the Office of the State Appellate
Defender in Chicago.
For the Defense - Vol. 8, Issue 1

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