For the Defense - Vol. 9, Issue 3 - 8

defendant thinks like 'most' people. But that role hardly matches
Rule 704(b)'s promise that 'matters' of mens rea at trial belong to
the jury 'alone.' " 40
Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
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.
Defense lawyers should use the " tools in [their] toolkit "
to combat Diaz-style evidence.
* 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 dissent highlighted three such tools.
* 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.
But by describing some of the potentially negative results of
the majority's holding, the dissent did " not mean to suggest
[that] they are inevitable. " 41
her concurrence, " parties can utilize the traditional tools in a
lawyer's toolkit " to prevent the misuse of expert testimony in
criminal cases.42
First, any evidence introduced at trial must be relevant.43
If,
as the Government asserted, it is true " that an expert opinion
about the mental state of 'most' people like the defendant is
not 'about' the defendant's mental state, " the dissent found it
" hard to see how that opinion might be relevant. " 44
Thus, when
faced with Diaz-style expert testimony, defense lawyers should
raise and preserve a relevance objection.
Second, courts can exclude evidence where its probative value
is outweighed by the risk of unfair prejudice.45
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
As Justice Jackson observed in
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.
4
* 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.
discharge, it is a potent weapon that should never
be overlooked.
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2 Id. at 1730-31.
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3 Id. at 1731.
4 Id.
5 Id.
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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.
Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
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observed, " testimony about what 'most' people think bears
minimal probative value when the question at issue is what [an]
individual thinks. " 46
about a defendant's mental state is small because a jury,
unassisted, can capably assess a defendant's mental state.47
And
expert testimony about what most people think-especially
when it is an expert that " carries with [him] the imprimatur
of the [g]overnment " -can pose a serious " danger of unfair
prejudice. " 48
Depending on the facts of the case, a prejudice
objection could prove very effective. No doubt many judges are
going to find this type of evidence unduly prejudicial.
* 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.
help of some clairvoyant. " 51
Third, a district court is to only admit expert evidence that
is sufficiently reliable, that is " grounded on widely accepted
principles, " and that will help the jury assess the evidence.49
Generalized evidence about mental states likely would fail this
test. Indeed, as the dissent states, " [j]urors are more than up to
perform th[e] task " of assessing " whether a defendant's story
about her state of mind is credible. " 50
" [T]hey hardly need 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.
As the dissent
5
The probative value of expert testimony
File your client's motion after the
3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
full notes section for this article.
About the Authors
About the Author
Click here to view and/or print the
Sarah Hyser-Staub is a litigation
attorney and Chairperson of the
White Collar Defense & Internal
Investigations Group at McNees
Wallace & Nurick LLC. Sarah's
experience includes representing
witnesses and targets before
state and federal grand juries;
defending individuals and entities
accused of criminal or regulatory
* 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. 9, Issue 3
Given that the analysis of this issue can be quite nuanced,
defense counsel would be wise to consider raising objections
in a motion in limine, citing the above rules and principles.
Depending on the court and the judge, counsel may also be
able to work these concepts into voir dire, inquiring whether
a juror finds such opinion evidence illuminating, or whether a
particular juror can separate the defendant from " most people "
in a particular class. Further, counsel could build this concept into
their theory of the case. For example, highlight what facts and
circumstances separate your client from " most people " who fall
into the class of persons the government typically prosecutes. Of
course, effective cross-examination is an excellent tool as well.
Counsel can focus on whether the proffered expert has any
experience with this defendant and draw the jury's attention
to this missing link in the inferential chain. Counsel might also
consider requesting a limiting instruction to provide the jury
with explicit direction on how this evidence is to be weighed.
Finally, as Justice Jackson noted, Diaz's holding is a two-way
street; defense counsel would be wise to consider how this
concept can be used proactively to support the defense. For
example, a defendant in a MoneyGram fraud case could present
* 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.
About the Author
Click here to view and/or print the
full notes section for this article.
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violations; defending public officials in proceedings before
the Pennsylvania State Ethics Commission; assisting clients
with responding to subpoenas from the U.S. Department of
Justice and the Pennsylvania Office of Attorney General; and
conducting Title IX and other internal investigations.
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
expert testimony that " most people " who pick up wire transfers
for fraudsters are not aware of the depth and reach of the
conspiracy, and thus should not be liable for the full amount of
the fraud.52
NOTES:
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Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
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3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
4
In sum, while Diaz certainly feels like a setback for defense
counsel, these authors join the dissent's optimism " that it will
ultimately prove immaterial in practice[.] " 53
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).
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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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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).
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.
Vol. 4, Issue 4 l For The Defense 9
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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U.S. District Court for the Middle District of Alabama. During
his clerkships, Matt handled a variety of cases, including
Fourth Amendment excessive force and federal employment
discrimination cases, and assisted with federal sentencing and
revocation hearings.
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
While in law school, Matt interned with the Honorable
Stephanos Bibas on the U.S. Court of Appeals for the
Third Circuit and with the General Counsel of the Federal
Communications Commission. He earned his law degree from
the University of Virginia School of Law.
Matthew L. Hoke is a litigation
attorney with McNees Wallace
& Nurick LLC who leverages his
federal court and governmental
experiences to advance his clients'
positions. Before joining McNees,
Matt clerked for the Honorable
Stephen S. Schwartz on the U.S.
Court of Federal Claims and for the
Honorable W. Keith Watkins on the
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For the Defense - Vol. 9, Issue 3

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