For the Defense - Vol. 8, Issue 3 - 24

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.
" We develop these different systems for specific use cases
and for specific firms, so you'll have the specific model for A&O
which becomes fine-tuned for them, " Pereyra said. " You can even
specialize it more than that, where you can get specific models for
cases - you can have a case where you can have a specific client
matter or specific litigation and the model is fine tuned for that
litigation or transaction. "
Harvey's founders say that Harvey is trained over at least three
types of data, starting with the general internet data that underlies
the GPT model. Harvey is then further trained against general legal
data, such as case law and reference materials. Finally, it is finetuned
against the law firm's own data, such as its historical work
product, templates, etc.
Additionally, it can be fine-tuned using data which involves a
specific matter or client.
To ensure confidentiality, when Harvey is trained for a specific
firm, that model stays specific to that firm and is not used as a
base model when deploying Harvey elsewhere.
5
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
" We firewall it based on the firm, " Pereyra said. " Any training
that A&O does on their model just makes their model better. And
that's kind of the point. Right? It's what makes A&O a unique law
firm-the feedback from their attorneys is going to make their
model look significantly better, or at least different, than another
firm. "
File your client's motion after the
According to the founders, within each law firm, there will be
different models protected by different sets of permissions and
firewalls.
* 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.
" You can't just take all of A&O's client matters and use the
same model because you don't want leakage, even within the
same firm, across client matters, so we're being extremely careful
of firewalling off all of these different things, " Weinberg said.
Harvey's firm-specific training is like teaching an associate the
firm's unique practice.
Some users of ChatGPT for legal purposes have noticed its
tendency to " hallucinate " -to make up answers from whole cloth.
This seems troubling since we are placing so much trust in AI.
Pereyra and Weinberg maintain that Harvey's method of fine
tuning the AI dramatically reduces occurrences of hallucinations
and, in highly context-specific applications, eliminates them almost
entirely.
For contract review, for example, Harvey can reduce hallucinations
" basically to zero. " In fact, Pereyra said, the error rate is lower than
for review by a contract attorney.
* 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.
24 For The Defense l Vol. 8, Issue 3
Vol 4 Issue 4 l For The Defense 9
Entirely reassuring? No, not in our opinion.
Pereyra and Weinberg say they are still not demonstrating
the product publicly. But they expect to have several new
announcements of partnerships and capabilities coming within the
next few months.
We should all watch carefully. Hallucinating AI is more than a
little scary.
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.
About the Authors
PANTONE
2955C
CMYK
7406C
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NOTES:
1
RGB
9/22/91/0
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HEXIDECIMAL
Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
#153A5B
#EAC137
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).
She is a frequent author
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.
finance from Saint Joseph's University.
(eighteen books published by the ABA and hundreds of
articles) and speaker on legal technology, cybersecurity, and
electronic evidence topics.
She was the President of the Virginia State Bar June 2013 -
June 2014 and a past President of the Fairfax Law Foundation
and the Fairfax Bar Association. She may be reached at
snelson@senseient.com.
Mr. Simek holds the prestigious CISSP (Certified Information
Systems Security Professional) and the CEH (Certified Ethical
Hacker) certifications. He also holds multiple technical
certifications for diverse technologies to include Microsoft,
Novell, mobile devices, digital forensics and computer
networking environments.
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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Mr. Simek is also a member of the High Tech Crime Network
as well as the American Bar Association and the Fairfax Bar
Association. He serves on the Board of Directors for Fairfax
CASA. He is a past co-chair of ABA TECHSHOW 2019, cohost
of the Legal Talk Network podcast Digital Detectives,
and a co-author of eighteen books. He is a frequent author
and speaker on information security, legal technology, and
electronic evidence throughout the country. He blogs at
https://senseient.com/your-it-consultant/ and may be reached
at jsimek@senseient.com.
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
The authors gratefully acknowledge the assistance of ChatGPT
in preparing these materials.
John W. Simek is the Vice
President of Sensei Enterprises,
Inc., an information technology,
digital forensics, and
cybersecurity firm located in
Fairfax, Virginia. Mr. Simek has a
national reputation as a digital
forensics technologist and has
testified as an expert witness
throughout the United States.
He holds a degree in engineering
from the United States Merchant
Marine Academy and an MBA in
Sharon D. Nelson, Esquire is the
President of Sensei Enterprises,
Inc., a digital forensics,
cybersecurity and information
technology firm in Fairfax,
Virginia. Ms. Nelson is a cohost
of the Legal Talk Network
podcast series called " The Digital
Edge: Lawyers and Technology "
as well as " Digital Detectives. "
#
The ethical implications of lawyers using AI are profound. All
lawyers would do well to remember the ethical rules which relate to
the use of the AI and make sure they keep current on the most recent
developments related to the use of AI in the practice of law.
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https://senseient.com/your-it-consultant/ https://www.senseient.com/your-it-consultant/
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