How Rule 600, Discovery, & Jury Selection Work in PA

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You’ve been charged with a crime.

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Every criminal case starts with one question.

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really

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When you begin to unpack that, you get into the courtroom and then evidence police investigations, you know, facts of the case, statements of witnesses, that all begins to really come into play and matter and all of that, including your constitutional rights, which are protected very heavily in a criminal trial, are thrown to 12 jurors to decide the verdict on those accusations.

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So everything is thrown to 12 in the box on the Now We Defend podcast this week, Kearney Law is going to unpack for you that process of a trial what it means, what it looks like, what’s going to happen and how we get there. At the end of the day, 12 people decide your fate, and that’s what it boils down to.

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And we like to use that trial process to our client’s advantage.

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So with that, I’d like to first start here with Justin. If you could just tell us a little bit about kind of someone’s right to a trial. What is that? And when does it start? Yep. So essentially, as we’ve talked in previous podcasts, we always try to resolve cases early.

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However, there are some cases that definitely do need to be a trial. So both sides have interest in the outcome of a trial. The Commonwealth obviously, you know, has their position. The defendant has their position in the sense that, you know, they want to be found not guilty. So trial is essentially the venue for resolving questions of fact and applying facts to the law.

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And that’s where the jury comes in. The jury is the finder of fact. They are the person will say those 12 that decide what actually happened based upon testimony, evidence presented, and essentially the facts alleged by either the Commonwealth or the defendant. Yeah. And that the court process. I always in finding myself explaining this to clients is slow to begin with.

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Yes. No. And we do everything we can to try to speed that up, not waste time. And sometimes you can use the the timing of the case as it goes through to your client’s advantage. Right. Sometimes we need to get things done before we’re, you know, negotiating a plea offer or going to trial. And we can use the time of the process to do that to advantage our clients.

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But at the end of the day, I get questions a lot from clients, you know, like, why is my case taking so long? What’s my next hearing? When is this going to actually happen? And the truth of the matter is, when it comes to calling in a case for trial, we as the defense attorneys, we don’t call technically control when that gets called in.

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Usually. Usually unless it’s a date. Certain. Yes. And what a date certain is, is you can with the court involved in this of course. And the prosecutor pick a date that is specifically going to be the definite date and time of the trial, but that is usually reserved for more serious cases. Right. Usually homicides, particular serious felony cases that involve a lot of witnesses.

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Experts. Right. That’s usually when we’re going to see a data experts is kind of a big one, because those are professionals that have calendars and schedules. And we need to kind of nail those down. But yeah, usually you’re not seeing experts in smaller types of cases, usually the bigger, bigger cases. So again the process is at the end when the case is ready, prepped for trial and ready to go.

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You’ve been through everything else. The Commonwealth, through the prosecutors, decides when to call that case into trial. Now. Now, that’s not technically true. Actually, it’s it’s court admin that calls the case into trial. Well, okay, but they put it on the trial list in the sense that the prosecution puts it on the list in the sense that it.

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Well, now the system is all different. We’re going to explain that a little bit because this some actually just changed recently this year actually. So we’re going to explain that. But at the end of the day it’s the Commonwealth’s requirement under rule 600 to bring the case to trial within 365 days. And we’re going to talk about that because there are some ways that can be delayed, you know, beyond the 365 day mark.

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Do you want to tell us a little bit about that? Actually, Tim 600. Yeah, yeah, I mean, rule 600 is the right to a speedy trial in the federal system. There’s not necessarily like a hard and fast date or like time limit for bringing a case to trial. But in Pennsylvania. We do have a rule of procedure that delineates that there’s 365 days for the Commonwealth to bring the case to trial from the date the the criminal complaint is filed.

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The criminal complaint is the charging document that’s initially filed with the magistrate. Once that document is filed, that starts the clock. And so you have 365 days. If the defendant is not incarcerated, if the defendant is incarcerated, then you have 180 days. There’s also another time limit, but that’s very rarely seen. I think it’s 120 days, if I’m not mistaken.

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But that’s something that’s usually completely different. And the 180 day mark isn’t going to get you to dismissal when someone’s incarcerated. Yeah, I could get you to the release. So I didn’t get that. Yeah, I didn’t get to the remedies part of it, but so remedies would be if if there’s 365 days that elapses, whether you’re incarcerated or not, then the remedy for that is dismissal of the case with prejudice.

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If 180 days has passed and you’re still sitting in jail waiting for the case to go to trial, then the remedy for that is nominal bail, which is like a dollar bail so that the person can post or choose to remain if they want, but they can post and then they can be let out. There are exceptions to this.

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Bail is a constitutional right in Pennsylvania, but it can be denied for certain offenses if they’re considered non-bailable offenses, or if the person presents such a manifest safety risk to the public that there would be no bail conditions that could safeguard the public. Bail can be denied. And usually when there’s a 180 day motion, there’s usually there’s always a hearing, right?

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I mean, the judge is going to be the one to decide whether or not that actually is going to get granted and whether, like you were saying, Tim, some of those exceptions might apply would warrant it not being granted. So there’s two questions. The first question is, did 180 days actually pass and did is the person bailable. Those are those are the two questions.

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And when they calculate the 180 days, the standards a little bit different than the 365 days, any delay that’s attributable to the to the defendant, excuse me, does not count towards the 180 days. That’s the only thing that would be excluded. What would be like an example of that? If the defendant requests a continuance, like let’s say the defendant is in jail, but the defendant is in jail in a different prison facility and cannot appear for the preliminary hearing at the magistrate.

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Well, that’s going to be a continuance on the defense, and that is going to be time that does not count towards the 180 day mark. So stuff like that. If if there’s a like if defense wants their own expert to testify and they request a continuance so that their expert can evaluate facts and put a report together and submit a report, that’s going to be a defense request.

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So basically, anytime you have the defendant asking for a continuance, it’s going to almost always be defense time. And that does not count towards 180 day mark. But everything else does. And it could be as simple as, you know, you hired the attorney. There was a hearing date initially set for your preliminary hearing. The attorney you hired was not available.

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So they requested a continuance and it got moved a month. And that that period of time would be excluded. Yeah. Or you didn’t have an attorney and you requested a continuance to get one. Right, right. Same thing. Yeah. For sure. Yeah. Okay. And the technically, the 365 days, the only real excluded time is the defense engagement, meaning continuances and things like that.

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But sometimes what we end up battling with is the Commonwealth as it relates to what they were, delays that are attributable not to the defense but to the Commonwealth. Right, right. Yeah. Tell me about how that happened. That is the that is the standard for calculating time where whereas time that counts towards the 180 day mark, only defense delays are excluded.

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Right. But when it comes to the 365 day day time frame, it’s not just delays against defense that are excluded, it’s delays that are attributable to other factors as well. The only delays that count towards the 365 day mark are delays caused by the Commonwealth. So if the Commonwealth is responsible for the delay that counts towards the 365 day mark, if the Commonwealth is jointly responsible for the delay, like let’s say the delay is both, it’s a scheduling issue with both the court and the Commonwealth.

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Well, that time might count against the Commonwealth, but they have to demonstrate due diligence to show that they are trying. They’re doing what they’re supposed to do to move the case along and get it to trial. And if they can show that, then that will be time that is excused from the calculation. But if the Commonwealth does not cause the delay, then that doesn’t count towards 365 days.

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And a lot of defense attorneys get this wrong. I’ve seen it quite a bit. There was recently a Supreme Court case that came out, I think, at the tail end of 2024 that made this abundantly clear. We had what was called the Hearth standard, which was a case that basically said if there’s delay caused by both the Commonwealth and the court, Commonwealth must show due diligence.

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But there was a case that came out after that which specifically specifically addressed that stand at the hearth standard and narrowed it and said, well, if the Commonwealth is not involved in the delay, if it’s just court delay, the Commonwealth does not have to show due diligence. And so that was our Supreme Court said that a lot of defense attorneys are not up to date on that or they’re they’re not conceding that point.

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But if the Commonwealth doesn’t cause the delay, then they don’t have to show due diligence. Right. And I mean, court delay does happen right? Times. I mean, judges go on vacation to judges are unavailable because they’re in other matters, that they can’t try this specific case. What under the new standard, I just kind of want to explain that if we solely have an issue of court delay, meaning the Commonwealth is trying to try the case and the court says, hey, we’re not available or we don’t have a judge to try the case at this very moment.

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Just so it’s clear for our viewers like that is excluding or not exclude. And then how does due diligence plan it’s excluded. And and the reason that it’s excluded. So they would have to show I think there would have to be testimony that establishes that the Commonwealth had no part in the delay. Right. So they would have to they would have to put on testimony to show they they were ready to go to trial.

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They had all their witnesses prepped or whatever, all the discoveries done. And the judge is the one who was unavailable or the judge continued it. The Commonwealth didn’t have anything to do with that request, all that kind of stuff. And if they do that, and it’s established that just the judge or whoever delayed it, then they don’t have to show due diligence.

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They don’t have to show that they’ve been due diligence throughout the life of the case. Yeah. The other thing to remember is that with due diligence, there’s case law. That’s come out recently from our Superior court, which makes clear that just because the Commonwealth was not duly diligent during, let’s say, the first two months of the case, doesn’t mean that the due diligence is contaminated for the rest of the of the time.

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They have to only show due diligence for the period of the delay in question. So if there’s a delay and they’re not duly diligent, well then that time counts against the Commonwealth towards the 365. But just because there was delay for which there was no new, no due diligence at some point, doesn’t mean that they’re just forever and and always not duly diligent, and that every delay now counts against them.

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The Superior Court made that clear in another case. I believe Stackhouse was that case. All right. And just so, again, our viewers understand what is due diligence. What does that mean? It basically means, I mean, in the it’s kind of muddy. It basically just means that they’re they’re acting reasonably to bring the case to trial. They’re, they’re doing everything that’s part of preparing for the case.

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Yeah. And I think you say it’s muddy because there’s a lot of things that can go into due diligence. Right? There’s a lot of factors that they can look at. I mean, if if you’re on the other side of it, I remember being a prosecutor and having to show due diligence and prove it in court to save a rule 600 claim.

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And it really comes down to factors that, you know, might have caused the delay. And did they try to overcome them with due diligence? Take discovery for example. That’s a big one, right? Like how how expeditiously is the Commonwealth turning discovery over to the defense. That’s a that can be something that bears heavily on the due diligence question.

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And sometimes, I mean, discovery is all the information that you get as evidence in the case. So this is things like police reports, lab reports, you know, anything as it relates to video, those types of things. And a lot of the times the delay comes because the Commonwealth prosecutors are seeking it from the lab or they’re seeking it from the police, but the police lab isn’t getting it to them.

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Right. So but that’s on them. I mean, they have to get that to the defendant. The defendant has a right to get discovery in a timely fashion. Right. So that delay would be attributable not to the defense and to the Commonwealth. Now the question is, are they doing it like is it due diligence. Right. The delay. Is the delay excessive or is it unreasonable or is it is it par for the course?

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Because I mean, we accept and I think some counties are better at this than others. They accept that discovery is an informal process and it’s an ongoing process. And technically, you know, according to our rules of procedure, the deadline for discovery is trial, which means that everything that every all the discovery has to be shown and provided to defense prior to trial.

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Trial is the deadline. So there is no like you don’t have to have all discovery complete within two months. That’s not in the rules. So it’s a question of how long does it take for certain things to be procured and given over. But I mean, especially nowadays, part of the challenge, why I think it’s harder to be a prosecutor than it’s ever been nowadays is because the amount of discovery has bloated beyond anything that ever existed up to this point.

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I mean, the amount of digital evidence that we’re dealing with in every case, even garden variety cases, is way more than ever existed before. I mean, we’ve if you have a robbery case, it is not uncommon just for surveillance footage, body cams, responding officers, that kind of stuff. The footage alone can be upwards of 50 gigs, and that takes time to reproduce and download and then put onto a disk or a flash drive or a hard drive and share it with defense.

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There are there are technological limitations to that. Yeah. I mean, I remember a time not so long ago where we would actually have to contact, for instance, the 911 center and specifically request that a 911 call be preserved, meaning not destroyed or overwritten in a case. And if we didn’t do that, we might lose the opportunity to do that.

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That doesn’t really exist anymore because they’re preserving everything, as Tim was saying, digitally, pretty much garden variety cases for everything now, and they’re turning it over and discovery. This would also go for people calling the police department specifically, or wanting video from the body cams. Like, we don’t have to really call and ask for that to be preserved anymore, because it’s in every case because they’re literally have these body cameras on their chests in every time they respond to an incident.

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York is wacky with 911 calls, though, so because they only save them for three months, I think. So you only have 90 days from the incident to request the 911 call, right? But if you’re if you’re requesting discovery, yeah, I mean that would be part of discoverable evidence. But think about that. Yeah I agree, but but it means that like you could have an incident that occurred and the criminal complaint is not filed until like maybe two weeks later.

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And maybe the preliminary hearing is not scheduled for another month after that, which means you’re already halfway through your 90 days before a prosecutor even knows those charges have been filed before a prosecutor even knows. Okay, I need to go request 911 calls now, because officers generally I don’t think know to do that. Right. But again, if they don’t request it and it’s this and they don’t give it to you, you could as a defense attorney use that to your advantage to say, hey, this was evidence the prosecutor failed to preserve it, failed to provide it in discovery.

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It’s discoverable. Why didn’t we get it? And that could be potentially something you can use in trial or spoliation, though is kind of a hard bar to clear because, I mean, the Commonwealth does have the burden. In that case, they would have to show absence of bad faith. They have to show good faith. Yeah. But I mean, I get that, but but come on, like if you’re in trial, I mean, that’s an argument as a defense attorney that I think you could make, just like if, for instance, there was photos that the officer could have taken on scene.

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I know we argue this a lot. Oh, so you’re saying you’re just making the argument that, like, they didn’t do everything they could have done, right? Yeah, that’s that’s fair. Yeah. I was thinking more along, like if you wanted an instruction which you can get where the judge says, hey, this is a thing that existed, they didn’t preserve it.

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The jury can infer that because it wasn’t preserved, it was favorable to the defendant. That’s the that’s what I was saying. That’s that’s a higher bar to clear. Well, yeah. Here in York two, I’m pretty sure that there I think there’s three people in the DA’s office that can actually request the 911 call. There’s a form that they have to fill out and it has to be approved.

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That’s my understanding. I think you’re right. So it’s different than other campaigns. You guys were more recently in the district attorney’s office. Is that as far as when you were last there? That’s yeah, that’s my understanding. Yeah. That there was I think 2 or 3 people that essentially, like I said, there’s a form that they would fill out and then it gets sent, I guess, over to the 901 center or wherever that goes.

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But it had to be specifically approved by one of those. So presumably the line prosecutor would have to flag the issue. No, they want to get it. Go talk to their supervisor, one of these three people who would then have to request, which is, I think, not a that’s not an ideal system. That’s probably not happening with much frequency.

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That’s not. And it was there were a number of cases, you know, by the time we’re actually getting a file, especially if we weren’t the one at the preliminary hearing in the DA’s office by again, by the time we got that file, it was likely too late to request that, which is crazy. I mean, and I, I had a case one time talking about trial, where I met with the jury afterwards and the jury had some questions and they were like, well, why wasn’t there a 911 call?

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And I told him I was like, well, the reason is because York only saves 911 calls for like 90 days or something like that. That’s the reason. And that’s what I was saying earlier. Like as a defense attorney, that is something that I think jurors expect, especially in a bigger case. Well, there might be a victim or somebody calling in actually saying this is what’s happening.

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They were shocked to find out that your only saves them for such a short amount of time. And I was like, yeah, I mean, honestly, we’re constantly having issues with this. And you should reach out to like the council or whoever, and you should try you should tell them that you just sort of wanted to come back and focused on the point that, you know, as defense attorneys, our job is to put that question in the jury’s mind and to exploit it.

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Right. If it’s an issue in the case, and it’s, as we’ve just explained, somewhat of an inherent issue in the DA’s office right now that they need to be careful. They’re right. Yeah. Because I mean, like Dauphin County when I was in Dauphin County, I mean, they would their system saved 911 calls for two years. And and that was even a change when I had gotten there because previously there was no time limit.

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So like when I first started there, they had 911 calls pretty much going back, I mean, for a long time, and they changed it, said said two years is the cutoff, and even after they implemented that cutoff, I was still getting 911 calls from four years ago. Yeah. And we were the ones responsible for doing that. And there wasn’t like a staff member who only three people who could request it.

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We had the contact information of the people at that at that center. Yes. I mean, you’re the one in control of the case. So we would just email them and they would send the 911 calls over. Right. And that’s, that’s, I think a better system. Yeah, absolutely. And this day and age, with the digital capabilities of our county here in York and really every county around Pennsylvania, they really should be preserving it more than 90 days.

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I agree, I don’t know for sure if that’s actually what’s happening. Is it that’s what we were told. Yeah. And days. All right. Yeah. That’s that’s pretty crazy. All right. Well that means, you know, again as defense attorneys, we need if we specifically want to get a 911 call for our client, like our client comes into our office and specifically says, hey, you know, I know that this is on the 911 call.

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It’s going to be advantageous to our defense. We need to get that. Yeah. And, you know, under that system, I mean, I’m I’m actually learning that here today. I didn’t realize it was that short of a period. But that’s a great point because I have had people say, yeah, I think the 911 call would benefit me. Yeah. Oh yeah.

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Yeah. And and I remember getting it in cases and I used to subpoena. You have to give subpoena. They want a subpoena. You go down, you pick it up. You actually drive over there. Yeah. Like your client’s the one who called 911, and you can hear the belligerent other actor. Right? And then your client’s the one that’s charged with assault.

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It’s like, well, that 911 call would be very favorable to my client. Yeah, yeah. No doubt. Absolutely. Okay, well, I want to talk about one other thing involving due diligence here. So and Justin, I’m going to kind of kick it to you for this a little bit. But just to set this up. So when it comes to due diligence, I’ve had a number of cases where someone gets charged, let’s say even with just something not crazy, let’s just use retail theft as an example or DUI, and they start engaging in the legal process.

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But the legal process never comes to an end. So a good example of this would be somebody gets put into the armed program, but then violates the armed program and gets kicked out of ARD. Their, their, their case goes right back into the judicial process as if it was never disposed of because it wasn’t as ARD until it’s successfully completed is not a final disposition.

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So that person’s case is right back into the justice system. But in the time it took for them to get violated and removed from ARD, they may have moved and they don’t have a good address, so they never forgot. Notice that they were getting kicked out of ARD and their case was getting put back into the judicial system.

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And then they come to me three for five years later, because they somehow got became aware that I now have a warrant because a judge issued a warrant because I didn’t appear for court, and I want to get my case resolved. Well, I’ve had a lot of situations, Justin, where I contact the prosecutor and I say to them, hey, can you prove that you were searching for this person, that you were seeking through due diligence, that you were trying to bring this person to court?

00:23:05:28 – 00:23:25:19

And a lot of times that can lead to dismissal of the case if you play it. Right. So tell me a little bit about that scenario and where we can use that to benefit our clients. Yeah, I think I had some cases like that. And it it it’s going to depend on the length of time. Yeah I think I actually had one.

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I’m thinking of one I had with you, I think it was like 15 years or so. Yeah. We had a long one that we were looking back. This is back when you were in the DEA and that one, I remember that one specifically. I had 1 or 2 other ones like that where it’s, you know, 15, ten, 15 years.

00:23:39:13 – 00:23:55:15

The officer is not an officer anymore. I think the one that I had with you, though, the whoever the officer was, was actually deceased. Yeah. So. Well, I think it was actually the police department that it was with was no longer a police department. They had gotten absorbed by another department. Yeah, yeah. There’s a number of factors that go into that.

00:23:55:15 – 00:24:21:15

And you know, some of those definitely can result in a dismissal not only for due diligence purposes, but you don’t have witnesses available. There’s no evidence anymore. It’s been, you know, lost, assured, etc.. So when that happens, it certainly can lead to dismissal. If we’re talking, you know, a year or two, that’s a different scenario. And also when you go out on a bench warrant, that also kind of changes things a little bit.

00:24:21:17 – 00:24:36:15

I think there’s arguments to be made that we don’t need. The DA’s office doesn’t need to be diligent in searching for that person. If there’s an active arrest warrant you had, you actually made me research this for you. Yeah. Did you remember that? I did, yeah, yeah, we had one really soon after he joined the firm. And Justin’s.

00:24:36:15 – 00:24:51:04

Justin’s point, I think is you’re correct. But I think you said it. I think he said it the opposite way, is that with arrest warrants, you need to show due diligence because you think about it. If charges are initiated, an arrest warrant goes out. A lot of times, you may not know that you’ve been charged unless the officer calls you.

00:24:51:04 – 00:25:11:11

I’m in bench warrant. Yeah, I knew it. I knew that you meant so, like the arrest warrant, they have to show that they’re actually trying to notify you, get you to come in or pick you up. Right. But if you fail to appear for court and a bench warrant issued, the court kind of presumes that no due diligence is necessary, because you already know that a process has been initiated and you failed to appear.

00:25:11:16 – 00:25:27:26

Now, it all hinges on the assumption that you kind of knew that there was a court process going. And like the example that I used with the whole I got removed from ar.d I had moved and I never got noticed. And then they put out a warrant. That person didn’t know that there was a court process going on.

00:25:27:26 – 00:25:45:11

That person had actually done all their air conditions, except they hadn’t paid off their costs or they thought they were there. Yeah, but the problem is that they’re required to notify probation. So like of their address. So like the clerk of courts I believe. Yeah. But and by extension, yeah. Because I guess not. Yeah. I think it’s going to depend on the situation.

00:25:45:13 – 00:26:07:19

There certainly can be situations where, say someone does update their address, but they still send it to the old address. We see that all the time, right? I mean, there still could be a due diligence argument, I think. But again, that’s not going to be on the Commonwealth though. Like if if the clerk of courts or court admin sends it to the wrong address, that delay doesn’t fall in the Commonwealth, as long as they can show that the Commonwealth is not involved.

00:26:07:19 – 00:26:32:17

There can be an argument for that. But but to Justin’s point, I mean, sometimes when you get these cases that are years out, I know I had one recently where we we were arguing a little bit about due diligence. We were also arguing about the inability to prosecute at this point in time, you know, given some factors. And and then also there was just the organic argument of like, listen, my guy completed everything with ARD.

00:26:32:19 – 00:26:50:01

He just didn’t finish paying off his cost. Do you really want to now give him a conviction and try to jam this through the system years later? So I think a combination of those factors can usually lead to a good result. Yeah. It is weird how, you know, they say time heals everything, right? Time to Band-Aid. Yeah.

00:26:50:02 – 00:27:08:17

Right. Yeah. And again, ten, 15 years go by. I just got a guy who has a he has a warrant from 2005. I think it was completed. Everything. Obviously, he’s been crime free since then because he never got picked up on a warrant. It’s not extradited. And I’ve had a few of these cases come through, you know, the last couple of months.

00:27:08:17 – 00:27:27:04

And what I found is by simply contacting probation, getting a voice out there and saying, hey, this person has this warrant from years and years and years ago. They’ve completed everything. They’ve remained crime free. You know, they’re doing well. They have a house, job, family. Can we just, you know, get rid of this warrant and close the case?

00:27:27:09 – 00:27:47:22

We close the case. And I will say that here in York at least, probation is is pretty reasonable about that. And I had a case where it was a woman who she did a section 17 that like we talked about in the previous episodes and section 17 again, for drug cases, it can lead to a dismissal and expungement case.

00:27:47:22 – 00:28:11:03

If you didn’t watch that episode, it’s a really, really good outcome that can clean, clean, sweep a case, a drug case, but go ahead. So so essentially, the paperwork never got submitted properly and nothing was expunged. Her doc was still showing up. I called over to probation, you know, got in touch with the clerk of courts. Just requires a little bit of coordination and again, some time talking to a couple different departments to make sure that everything gets cleaned up.

00:28:11:03 – 00:28:29:09

And like I said, there’s they’re very reasonable. And if we reach out and kind of get everything moving, they’re pretty good about, you know, closing, specially if you have some if you have some reason for why the warrant was active for so long, like if you can come in and explain, like they didn’t know about the warrant because of this.

00:28:29:13 – 00:28:46:22

Right? They moved along with their life. They had no reason to know about the warrant necessarily, or at least maybe they should have known, but they didn’t. That, I think, helps too, because if you come in and you’re like, yeah, he knew that he had a warrant for 15 years. He was just hiding and he was just he was just laying low like, that looks pretty bad.

00:28:46:22 – 00:29:01:03

And there’s not a court in the Commonwealth that will attribute that time to anybody other than the defendant, if that’s the case. Yeah, absolutely. But, you know, that’s the first question from the judge, right? You walk into court, where were you? Where you been for 15 years? Yeah. What’s been going on? Why didn’t you come in and deal with this sooner?

00:29:01:09 – 00:29:23:20

So as a defense attorney, you’re walking in there with your client. You need to ask your client that question ahead of time. Be prepared to answer that appropriately with also candor to the court, of course. Right. Okay. Well, Tim, I want to pop over to you. We were talking earlier about kind of that rule 600 and trial delays and what’s attributable to that time period and what’s not.

00:29:23:22 – 00:29:44:13

And one of the things that comes into play here is if, as a defense attorney, we file what’s called an omnibus pretrial motion, it could point. Right. So I want to talk not only about what is an omnibus pretrial motion, but also how that affects the trial process and getting your case to trial. Yeah, I so I, I once had a case that was kind of interesting on this.

00:29:44:13 – 00:30:14:09

And it was resolved kind of at the tail end of my time at the DA’s office. And then I think that even after I left, the opinion came out. But the rule is that when you as a defense attorney, file an omnibus motion, it stops rule 600. So rule 600 is is paused, essentially, because now there’s a bunch of delay time that is attributable to the defendant, because the defendant is saying this is an issue and we cannot go to trial until a judge weighs in on this.

00:30:14:10 – 00:30:38:29

Got to solve this. We got to fix it. So the time that’s not attributable is from the date that motion is filed until that motion is heard litigated and decided. Yeah. So until the order granting or denying the motion comes out, that time is excluded. Now, the interesting thing that I had happened was we had a motion, a defense omnibus, and we had a hearing, and I was proceeding at that hearing based on a particular legal theory.

00:30:38:29 – 00:31:01:17

And the judge, I think, understood that theory, but wanted to hear about something else. The judge kind of suicide. Auntie and Tim sponte. What is that on on the judge’s own right. The judge decides something on their own. And it’s not that the judge raised this issue on the own, that on on the judge’s own part, because that was what the defendant was saying later on.

00:31:01:20 – 00:31:35:13

In truth, I flagged this issue in my response to the initial motion, but I didn’t make the argument about this issue because I was kind of going for the throat with another legal doctrine, and the judge wanted to know more about this doctrine that I was kind of tiptoeing around in my response. And so when I didn’t present anything about that, the judge basically ordered us to submit supplemental memorandums and ordered us to do another hearing and ordered certain witnesses to be called the testified answer on this question.

00:31:35:19 – 00:31:55:26

And the defendant didn’t like that because the defense’s perspective was, well, they had their shot at the motion, and now you’re giving them another hearing. Well, yeah. But also I presented all of the things I needed to in order to address the motion. Now the judge is going down a different path because the judge thinks there’s potentially another issue.

00:31:55:26 – 00:32:18:03

And it was an issue that wasn’t raised in in their filing, but it was an issue that I addressed in my filing. And now the judge wants to investigate that further. Nobody really can anticipate that. It’s within the judge’s prerogative to do that, of course. And so the judge scheduled another hearing. And and by the time the motion was actually decided, I mean, we had something like, I want to say, maybe two months of delay.

00:32:18:04 – 00:32:37:08

And defense was arguing that the time after the first hearing, until the time the motion was decided, should count against the Commonwealth. So there’s no legal support for that. So the suspect part of decision is what they were arguing they were. But yeah, that’s that’s not going to work. And there’s no authority on point for that. I would say they lost that right.

00:32:37:09 – 00:32:54:07

They did lose. Yeah they lost. And I think that it would have been different if I had asked the court if I had come into that hearing and gotten my clock cleaned as the Commonwealth and said, judge, I can sense the way the wind’s blowing. You’re going to grant this motion. I need another hearing so that I can call other witnesses.

00:32:54:07 – 00:33:15:19

And I’m asking you to leave the record open. Well, now that’s a different story. That’s on you. That’s on me. Right? But I didn’t care whether one way or another whether the judge left the record open or closed it, because I believed that I had made an adequate legal argument. Okay. Yeah. So again, just so the record is clear here today, what is an omnibus pretrial motion?

00:33:15:19 – 00:33:31:01

That is a word omnibus we never use in normal speak. Right. So what does that what does that actually mean? I mean, it’s a Latin word, and I don’t know what it means, but what is an omnibus motion? What is it asking. Yeah. And the word itself I think means like all things. Right. So or something along those lines.

00:33:31:01 – 00:33:51:17

So it’s, it’s, it can be whatever really. I mean think, think like suppression which was the case here. They were alleging a Fourth Amendment right had been violated and that there was evidence that needed to be suppressed if your Fifth Amendment rights had been violated and you were interrogated or you weren’t Miranda or you you know, your consent was coerced in some way.

00:33:51:25 – 00:34:14:23

These are pretrial issues that you raised because you think there’s certain evidence that should be excluded, right? So it really, guys, it comes and on the bus, pretrial motion comes down to one side. It could be the Commonwealth filing it, or the defense is asking the judge to make a decision on whether certain pieces of evidence, information, whatever come in in trial or do not either meaning get to the jury’s ears or do not.

00:34:14:25 – 00:34:39:20

And you have to sort these things out ahead of time, because if you don’t, you might end up in a trial and accidentally cause a mistrial because you brought in evidence that would have otherwise not been allowed in. So we sort these issues with omnibus pretrial motions out before we ever get to the day of trial. That way, everybody’s going in on a level known playing field, and there aren’t hopefully going to be any, you know, mishaps or miss trials that get cause.

00:34:39:20 – 00:34:56:27

But there’s a lot of things in addition to that that can be included in that. I mean, really like it’s way more exhaustive than just fourth or Fifth Amendment right? Issues. Like if you want property returned to you that can be included in that should be included in your omnibus motion. Habeas rights can be can be included in.

00:34:56:28 – 00:35:16:26

Okay. Again, another word that we don’t talk about in society a lot. What is habeas rights? It’s basically like what’s the basis for either incarcerating someone or bringing charges. Like you have to prove that you have. It’s like the prima facia that we talked about with preliminary hearings. It’s basically the same. And again, sometimes we file a habeas corpus motion at the Court of Common Pleas.

00:35:16:28 – 00:35:44:09

Again, we’re I know guys, we’re saying a lot of words here that are really weird, but a habeas corpus motion after a preliminary hearing is held at the lower court is essentially tantamount to asking the Court of Common Pleas to hear essentially another preliminary hearing where the burden is essentially the same prima facie evidence. Again, another Latin term that we talked about and I think one of our first episodes when we were talking about preliminary hearings.

00:35:44:10 – 00:36:16:17

All right, enough gobbledygook words there for a moment. Let’s let’s jump back here to just jury trials, kind of generally, I want to talk about, you know, when you don’t always get a jury trial in a criminal case, not every criminal case has a right to have a jury trial. And when you don’t have a right to have a jury trial, you still have a right to have your case adjudicated by a court in a bench trial, not a jury trial.

00:36:16:20 – 00:36:49:15

But, Justin, tell me, when does the jury trial right actually get triggered? And what are the factors that trigger it? Yep. So jury trial, at least here in Pennsylvania, is for any crime that comes with a year or more of potential incarceration. Right. So misdemeanor 321 felony 321 homicide, first offense, DUIs and other ungraded misdemeanors do not qualify for jury trials because the penalty is not great enough.

00:36:49:16 – 00:37:11:17

Yeah. So a big one is a first offense DUI, right. That’s kind of I would say 90% of bench trials. Right. Because the maximum penalty you can get for a first offense, say tier three or any tier UI is what, six months, six months, right? So as Justin was just saying, that doesn’t meet the threshold of a year and therefore would not qualify for a jury trial.

00:37:11:19 – 00:37:41:09

Yes. Right. Okay. All right. Now, sometimes when you do qualify for a jury trial, you can actually still have a bench trial. Yes. Right. And sometimes there’s reasons you want to do that and advantages to doing that. Yes. But sometimes there’s disadvantages. And you don’t want to do that to get a if you qualify for a jury trial to get a bench trial, do both sides have to agree or can you force that if you’re the defense, both sides have to agree.

00:37:41:14 – 00:38:08:10

The defendant essentially has to waive his right to the jury trial. There’s a colloquy form. Actually, a judge should be world colloquy the defendant. And there’s also a form of written form that should be done. I know that we ran into this issue when I was in the DA’s office. I don’t it wasn’t one of my cases. It was something that happened in the courtroom that I ended up being in maybe six months, a year prior to that, where there was an issue where they didn’t.

00:38:08:11 – 00:38:25:04

The judge, I can’t remember if it was a written or oral part of it, but one of those was not done, and it ended up being an appeal issue, and it was this whole thing. So I think at least at this point, the judges here in York County and the DA’s office and, you know, most offense attorneys do know that there should be a written or call.

00:38:25:11 – 00:38:52:09

But both sides have to agree. The Commonwealth has to agree. I think what we see both as prosecutors and defense attorneys, when you have well, I think first offense DUI is probably the best example of this. And you have like a paraphernalia charge. The paraphernalia charge qualifies for a jury trial, right? Right. The DA’s office doesn’t want to waste, a jury trial spot on the trial list on a paraphernalia might be a weed pipe.

00:38:52:11 – 00:39:23:05

Yeah, right. And as defense attorneys, in my opinion, the best way to go about handling that type of case is saying, let’s just do a bench trial, right, because we’re not clogging up the jury trial system. You know, the judge is going to be able to what we assume that they, you know, can decide and exclude certain things that the the rules of evidence are maybe just a little bit more lax, where, again, the judge can differentiate between things that maybe a jury wouldn’t be able to.

00:39:23:07 – 00:39:43:29

Right. And like we said, you know, jury excuse me, bench trials, 90% of them are for sense to use, whether it’s tier one, 2 or 3. You know, when you’re dealing with a bench trial situation again, guys, you’re dealing with just a judge who’s hearing all the evidence. They’re essentially judge and jury. And it’s important to understand that who your audience is, right?

00:39:44:01 – 00:40:13:09

Because if you have a case that qualifies for a jury trial and has very, very complex legal issues involved, maybe it’s a, say, a financial fraud case, right, where there’s all sorts of very, you know, involved financial records, things like that, but there’s not a lot of emotion tied to it. It’s all like record based. That might be something that would be better for a judge to sort through than 12 people who have no specific expertise.

00:40:13:10 – 00:40:36:09

Maybe. Maybe not. But I like to also think of a jury trial. And I want to get your guys take on this. Actually, both of you like when you’re dealing with this, this decision. Right? Because you make this decision whether or not to request a bench trial or a jury trial with your client. Right. And I’ve had these discussions in, you know, our conference rooms with them where we’re talking about like, what is our actual defense that we’re unpacking here?

00:40:36:09 – 00:41:00:15

And how is that going to play to a judge or to 12 people that have no legal acumen or background? Right. And I always feel that the jury, you can be a lot more theatrical, emotional, engaged personally with a jury, even though you really can’t, like, have a conversation with them. You can engage with them on a personal level that you’re really not going to get with a judge.

00:41:00:17 – 00:41:19:27

I mean, what’s your guys experience with that? I agree with that. I mean, I think if you’re if you’re kind of banking on playing towards the emotional side of things, then a jury is probably the way to go. But if you’re concerned because there’s like a complex legal argument you’re making and that’s likely to be lost on a jury right, then that could be something that ends up with you being convicted.

00:41:19:27 – 00:41:38:25

Confusing. Put them asleep. No. Right. So that is kind of the balance, right? Yeah. I’m gonna tell you a funny story. I once had a case. This is years ago, back when I was a prosecutor, and it was one that should have been should have been a bench trial. It was a boring case. It was it was actually a financial case that I was prosecuting at the time.

00:41:38:25 – 00:42:00:23

And I remember during the trial, the defense attorney didn’t want to do a bench trial. So we ended up doing a jury trial. And I remember looking over at the jury and one of the jurors was openly picking his nose. And I’m thinking to myself, this guy is so disconnected from this that he’s in public, literally an audience to other people, and he’s picking his nose openly and doesn’t care.

00:42:00:26 – 00:42:22:13

Like that’s how disconnected he was. Right? And I remember in that moment, thinking to myself, like this absolutely should have been a bench trial. This is completely lost on them. And, you know, and they didn’t want to listen to it anymore. Right? So I had a guy just full on asleep. Oh yeah. Like, yeah out cold. And I remember well, sometimes that’s what the bailiffs are for right.

00:42:22:13 – 00:42:38:16

They’re supposed to go stick them in like wake them up. I remember just asking for a sidebar and I was just like, does anybody else see this guy? And the judges like, how much we can do? I’m like, well, I know, but I mean, strike am, I guess, technically, right? I mean, you could if you had alternates. Yeah, he might have actually been an alternate.

00:42:38:16 – 00:42:52:26

I forget this was two years ago, but I’ll never forget that. I mean, that guy is going to be a problem then. I mean, if he’s sleeping through half of the trial and he’s going to go back to deliberate and he has nothing to offer, I remember looking over, I’m like, I got snoring, you know, like it was crazy.

00:42:52:27 – 00:43:07:28

Well, I mean, it wasn’t the most exciting case, but definitely wasn’t I mean, I imagine did they wake him up at least, or did they did then. Yeah. You got I had an English teacher in high school that if you, if you were sleeping in class, she had this giant fly swatter and she would come up to your desk and, like, whack your desk with it, like right beside your head or whatever.

00:43:07:29 – 00:43:27:17

And like, they should have a bailiff that’s got just like a giant plastic spoon or something and wax the desk. Well, I mean, technically the bailiffs roll in like the old system was to essentially keep people awake and like that type of thing, right? They would actually go stick them in Pokémon like a slingshot, and they’re like, just from this, right?

00:43:27:19 – 00:43:49:15

But, I mean, that’s now the bailiffs. They’re basically they hand up paperwork to the court and they give water. They pass water out there. Usually folks that are, you know, retired and are still, you know, involved in the system a little bit. But but I’ve seen stuff like that too, where like, you can tell like I’ve heard cases where like when we’re taking a break or whatever, and the jury stands up and I can hear somebody on my jury going, this is stupid.

00:43:49:16 – 00:44:11:05

It’s like, well, I guess I’m cooked, you know, like this. I’m done. Yeah, yeah. All right, well, let’s talk about another weird Latin legal term of Verdier. Tim, I want to jump over to you. So we’re going to start guys jumping into, you know, your at trial day, right. You’re walking in, you finally got to your day for trial.

00:44:11:07 – 00:44:37:09

You know as they say you’re getting your day in court. Well this doesn’t start with you. Just walk in and the jury’s already sitting there. So Tim, what is Verdier and how does it work? So it is a it’s the process of selecting a jury. And the the process, at least in Pennsylvania, is kind of different from county to county, but most of the important stuff is the same.

00:44:37:11 – 00:44:53:20

You’re called in your case is called up. They say your case is next on the list, and you have to be at court at such and such a time, and you’re going to pick a jury. And by the way, in York County, at least, you sometimes only get an hour notice. Your case has been called into trial, and you got to be there in an hour.

00:44:53:20 – 00:45:09:25

And as defense attorneys, we’re running around on hearings all day, meeting with clients, and we have to really drop everything we’re doing. I mean, we’re generally on notice, but drop everything we’re doing and run over there and get our client over there and they might be at work or something. Other counties have mechanisms like this that are called, I think, pick and go.

00:45:09:28 – 00:45:31:20

That’s kind of what I would term this system as is you’re you’re called in. You have to pick a jury and then you roll right into trial. But for the for the jury selection, part of it in York County, at least for most standard cases. And it’s different with really serious ones or really big cases. But with most standard cases, you’ll have a jury panel that’s brought up into the courtroom.

00:45:31:20 – 00:46:04:21

They’ll sit in the gallery. The panel size is anywhere from 30 to 40 5 to 50, maybe jurors, prospective jurors. And at that point, the judge maybe will give a brief introduction about what the case is about. Introduce the parties and then they say, Commonwealth, your turn. And the Commonwealth gets to stand up and ask questions. Yeah. Now before that though, as both sides fence and prosecution are given, juror questionnaires that are essentially pre-filled out by each member of the jury pool, yeah, they come along with the summons for jury duty.

00:46:04:21 – 00:46:22:05

And then the every juror who who is summoned for duty has to fill one of these questionnaires out, and then they send them back in and both parties get to see those questionnaires. So if any of you have ever been assigned to jury duty, and I have a lot of friends, whenever I have a friend who gets jury duty notice they call me.

00:46:22:05 – 00:46:44:17

And what’s this like? What’s this going to be? And I always tell him, well, it’s actually a lot more interesting if you actually get on a jury than if you don’t, because a lot of people want to know how to get out of jury duty. But the bottom line is there have to fill out this questionnaire, and the attorneys are going to look at that and essentially start kind of prejudging who they want their jurors to be based upon that questionnaire.

00:46:44:20 – 00:47:07:29

And I also want everybody out there who gets jury duties, duty notice to understand is that just because you work or have kids or whatever, you’re not going to get out of jury duty for that. So you might as well make the best of the jury duty situation as you can. Now, if you get in there and then you have like a real emergency come up or something, you can sometimes raise that and they’ll actually release you from jury duty.

00:47:07:29 – 00:47:29:16

But a lot of times they’re going to make you actually come in and then possibly release you. So if you’re already there, it’s going to be a lot better to be at least involved in the system. And maybe even I hate to say this, but like entertained a little bit and engaged a little bit other than sitting in a room full of people you don’t know, maybe reading a book because I don’t even think they bring yourself let you bring your cell phone in anymore.

00:47:29:17 – 00:47:45:07

I’ve seen some jurors that do bring books in with them. Yeah, but not your cell phone, right? They don’t let them bring their cell phone. No, I think they do. They just can’t have them in the courtroom or in deliberations. Because we had that one case with the juror who had a tablet. Yeah, some guy brought an iPad in just trying to do, like, research.

00:47:45:07 – 00:48:05:08

And I think they like during the trial. Out the trial. Yeah. He was before they elected him as the four person. And this this story hilarious. They elected him as a four person. And then he went back and was just being like absolutely ridiculous. Then they ended up voting to have him not be the four person. Oh, wow.

00:48:05:10 – 00:48:21:04

And then they were him. They were. Yeah. They were trying to get him kicked off like the jury during deliberations because how ridiculous he was. And then all of a sudden they’re like, well, he has his iPad in here. They’re like, back there, light and torches and stuff like, like you’ve been kicked off the island. So yeah, like this isn’t survivor.

00:48:21:05 – 00:48:38:05

What is the process for? There is no process for that. I mean, they just it’s mutiny. They basically get. Yeah, yeah, yeah just anarchy. Did that get to a verdict. Did that case get to a verdict? It did. And I feel like it was hung on 1 or 2 charges. It was guilty on 1 or 2. Did they.

00:48:38:09 – 00:48:58:20

How did they handle the guy? I’m pretty sure they they kicked him out like they were released. Him meaning he was gone from the jury pool completely. Well, it was after a trial right into liberation. Don’t quote me on this. I feel like if I remember correctly, they ended up taking his iPad. Right? So like, the judge confiscated it or whatever.

00:48:58:20 – 00:49:12:29

And then they sent him back in. But then I think there was a number of issues with this guy. So they were in and out like 4 or 5. They start like physically accosting him or I say like they threw him in the trunk of somebody’s car so that the jury can get out of there. Yeah, it was just it was just a whole thing.

00:49:12:29 – 00:49:35:16

And then there was another story. I’m going to shout out one of the other defense attorneys here in the county who does some federal stuff. He had the most hilarious jury trial story regarding a juror, and it was kind of similar to that where this guy was just all over the place, was telling ridiculous stories. And I’ll tell you guys after who it was.

00:49:35:16 – 00:49:55:20

But there really are some funny juror stories out there. And that’s one thing that, you know, as defense attorneys, we have to remember and defendants have to remember, it’s 12 random people. Yeah, right. You never know what these people are going to be like. Obviously we get the juror questionnaires. It’s 14 questions has, you know, their occupation if they have a spouse, children, etc..

00:49:55:21 – 00:50:17:13

Education level. Education level. I mean, I never pick teachers, never striking them every single time. Yeah. Pastors was always a big one. So let’s talk about that real quick because this is kind of interesting topic. And I think this gives people like a background look at how we analyze these. Right. There are some professions that are inherently dangerous to miss jurors.

00:50:17:14 – 00:50:38:09

Right. For for well, so we were talking from the Commonwealth’s perspective. But I’ll tell you from a defense attorney perspective, and I have some of those let me go over my top three professions that I would not want to have on a jury. Number one for me would be nurses. I agree, I agree, and to be honest, I like nurses.

00:50:38:09 – 00:50:59:10

I love outside of juries, right? Whenever I’ve been in the hospital needed to deal with a nurse. They’re always nice. Do you need more jello? Do you need anything like that? But when you get them on a jury. Yep. They can be almost like a cancer to the jury. Like it? They get back in that room and weird stuff happens with you.

00:50:59:10 – 00:51:16:27

I think it’s because they get pissed off about stuff very easily. Like, I think they they get upset. Like, if you’re in a DUI case, chances are the nurses that are on your panel have been in the air or something and treated somebody in a DUI axis. They’ve seen some real world stuff that they then bring into that, and that person’s going to come in and be like, screw this guy, right?

00:51:16:28 – 00:51:45:07

So okay, so that’s kind of number one for me. Number two would probably be teachers, but I would also say pilots. But we don’t see a lot of pilots here. The reason I say pilots, pilots like for some reason they’re they always want to be in control. And I feel like they sometimes hijack the jury that I’ve seen, but no pun intended.

00:51:45:08 – 00:52:10:11

Yeah, you’re right, no pun intended. Yeah, but teachers but teachers specifically, as you guys kind of. Justin, as you indicated, teachers can be dangerous too, because like you were saying about nurses, I mean, they deal with kids, they deal with parents, they see a lot of weird stories. And I think what they end up doing is they’re bringing in, like, outside extraneous factors into a jury trial, into a fact pattern that aren’t relevant.

00:52:10:11 – 00:52:26:16

And they want to run the show. Yeah. Well, they also run the show because they run the classroom. I always thought that they were very defense friendly, though. I mean, that was always my experience with teachers was that they were very like, I get lovey dovey, kind of like like not really wanting to put the fire to people.

00:52:26:17 – 00:52:44:05

Yeah, I could see that. Maybe you had different experiences with that. Yeah. Tell me about what your thing with teachers is, Justin. My thing is it was, I think, my second or third jury trial in the DA’s office. And I still feel this way even as a defense attorney. But essentially it was a it was a not guilty.

00:52:44:05 – 00:53:04:26

And I thought it was a really, really good case. And talking to the jury after. So this woman who was the teacher actually did not stay to talk. There was, you know, 4 or 5 that did. And basically what they told me is that it was 11 to 1 for guilty. She was the one not guilty. And then she kind of took the lead and convinced everyone that he was not guilty.

00:53:04:27 – 00:53:21:16

Oh my gosh. So I was like, well, and that goes both ways. You know, if I have 11 to 1 where it’s not guilty. And then again, that was my experience with with having teacher never picked another one after that. Yeah. I just because the power of persuasion I’ve had one experience with a teacher that I’ll never forget.

00:53:21:19 – 00:53:45:19

It was when I was a prosecutor. So again going back a number of years, I didn’t vet this teacher closely enough. It was a bank robbery case that I was prosecuting, and the teacher that I agreed to put on my jury ended up being a teacher of criminal law in high school, and she went back to I talked, they ended up getting convicting, but I went back.

00:53:45:20 – 00:53:58:08

It took him forever. And I went back. And it wasn’t a case that should have taken forever. And I went back and talked to him, and it was 11 to 1, and the teacher was the only one that was the holdout, because she felt like there needed to be more and more and more because she teaches criminal law.

00:53:58:08 – 00:54:16:26

So long story short, what happens then is I’m talking to them and I strike up kind of a private conversation with the teacher afterwards. Everyone else is kind of leaving, and turns out she’s a teacher at a local high school here. And I for years after that, we ended up linking up, and I went in and I taught her class, like for a day.

00:54:16:26 – 00:54:30:25

I would come in and talk about law and what I do at that time as a prosecutor. And we struck up a really fun friendship. And I did that for a number of years, and it was just a really great experience. But that, that, that one with the teacher, you got to be really careful if you’re picking a teacher.

00:54:30:25 – 00:54:54:03

I would say that one profession I think that both sides can agree on is just absolute cancer. To have on your jury is attorneys. Oh yeah. Attorneys like yours. Yeah. Well, people say that about engineers, but I’ve always liked the way you feel about teachers is kind of the way I’m about it here with an engineer. If you have a really technical case, you have to be a little careful because sometimes they think they’re going to solve the whole thing.

00:54:54:03 – 00:55:09:19

Well, that’s how attorneys are, right? And especially non-criminal attorneys. They’re going to come in and be like, I’m an attorney, you should listen to me. But you don’t practice criminal law whole thing. And you’re just you’re going to be the one that’s the blind leading the blind. And and people are going to generally, I think, are going to acquiesce to an attorney on the jury.

00:55:09:25 – 00:55:25:16

And that’s just that’s just yeah, they almost get like a level of power. Yeah. Just by being an attorney in the jury’s eyes that sometimes they will the attorney ends up shepherding the whole jury, you know, and it can it can hurt a case. And that one person then is going to be fighting against who even knows how the other.

00:55:25:19 – 00:55:44:09

My third one that I think about a lot attorneys is one that to me that’s just obvious. No, that’s a no brainer. I don’t even put it on my list. But the other one is I wonder what you guys think about this small business owners. And the reason I say that is if someone is a small business owner, they are day in and day out in full control, right?

00:55:44:10 – 00:56:06:20

And they have people that they control and they have people that they are the boss of. Right. And to me, you put the boss in the jury room, the boss is going to try to take over the jury. Yeah. And I get I feel like that’s kind of dangerous. Yeah. I think you’re right. I think from a defense perspective, another kind of juror that I really don’t want on my jury is the spouses of military members.

00:56:06:21 – 00:56:30:16

Oh, yeah. How’s that? Specifically, spouses tend to emulate. I think a lot of like, military members may be kind of both ways. I mean, I think they’re generally very, like, government friendly, but they could, I think, be open to like, taking somebody’s side if that’s if the facts are right. But with a spouse of a military member, I think they have all the same traits of the military member.

00:56:30:21 – 00:56:51:28

But they also, I think, jumped to judgment very quickly and very often. I think they’re very not defense friendly. So that’s why I mean, my experience with people in the military are a lot of times have to make decisions very, very quickly under a lot of stress. Right. Sometimes life changing decisions. Right. And obviously they’re talking to their spouses about these things when they’re home.

00:56:51:29 – 00:57:07:21

You know, and I agree they adopt those traits. They can adopt that. Yeah. That could. That’s interesting. I didn’t really think I’ve had some cases where as a prosecutor, I was deliberately trying to get military spouses onto the jury because I loved them in border. They were awesome. Yeah. I mean, the stuff they’re saying, they’re all about personal accountability.

00:57:07:21 – 00:57:38:16

They’re all about all this other stuff. And it’s like, these people are great on the jury, but not from a defense perspective. So now that we went over all these folks that we don’t want on our jury, who the heck’s left? Right. But there’s plenty of professions out there. And honestly, guys, I mean, we say this, but I actually sometimes if I have somebody that is falling into one of those like dangerous professions to have on a jury, I will individually engage with that person in Verdier and I will try to kind of connect, because that’s the time when you actually do get to have a conversation with them.

00:57:38:23 – 00:58:04:19

The only time, right, in the whole trial process. And I think sometimes like I’ll, I’ll make a switch judgment call in that Verdier process on some of those that I actually like. Oh, I think this person’s actually somebody that could reason through this and is going to be fair. Yeah. Because I guess a defense attorney, you are the sole line of defense in getting the right people on the jury that are going to be fair.

00:58:04:19 – 00:58:23:14

You have to protect your client from a fairness standpoint because, you know, there are a lot of people out there that do lean heavily. Commonwealth, you know, just by, you know, these are keep in mind guys, people that are on the jury pool have been vetted. They are not prior criminals. They are not people with records. You know, they are not.

00:58:23:15 – 00:58:38:23

And if you do have a record and you somehow snuck on to the jury pool, they’re going to kick you out anyway. So these are folks that are not involved with the criminal justice system really ever. This might be their only time. Right. And you have to be a little careful there as a defense attorney to make sure you get people that are going to be fair.

00:58:38:25 – 00:59:01:22

Now it breaks the other way, too, right? I definitely think it breaks the other way. And as we’ve said, and I think, Tim, you’ve hit on this in a few episodes before about how, you know, being a prosecutor is a very hard job right now. Being a law enforcement officer is a very hard job. There’s a lot of people in society that are anti government right now that are anti law enforcement, you know, defund the police type of stuff.

00:59:01:23 – 00:59:23:29

Right. But that’s what the Commonwealth is trying to ferret out. Right. And you go back 2030 years. That was unheard of unheard of on the jury. You’d never have somebody on a jury questionnaire say they were less likely to trust police in this area of the state especially, but now it is more common. And so I think the difficulty really is finding the middle of the road reasonable people that can be fair to both sides because that’s really what we want.

00:59:24:01 – 00:59:47:28

We don’t want somebody who’s going to come in and just torpedo a jury panel because of their own preconceived beliefs, even if those beliefs are favorable to us generally. I think most attorneys understand that that’s potentially a bad thing, because it can create legal error that ends up having to retry the case. And, you know, people’s rights get violated and you you waste a ton of time trying a case for a week, and then you end up with a hung jury or you end up with a mistrial.

00:59:47:29 – 01:00:03:19

Right? Right. So, you know, you definitely want to try to avoid that where you can. And that’s the whole point of her, dear, to try to get individuals that are not going to do that and are going to play out the process fairly. And I think you made an excellent point that bears repeating, which is like we say, all these rules, but there’s no real hard and fast rule.

01:00:03:20 – 01:00:23:28

Yeah. And I would tell people like younger attorneys that were like coming in to train and do their first jury trial and stuff like, I mean, I have things, general principles and rules that I follow in voir dire, but those rules are always subject to change because people are not monolithic. They’re not cookie cutters. So like, every person is going to be different.

01:00:23:28 – 01:00:47:26

Every person in in a particular field is going to be different. You have to treat them like individuals because they they are not necessarily going to conform to what my images of them. Yeah. I think one of the best things to kind of say about for deer, when you’re an attorney and you’re picking the jury is. But the bottom line rule is go with your gut.

01:00:47:27 – 01:01:12:05

Oh, they’re just going to say trust your gut. You got to go with your gut. Have to, because your gut has trained you to know people throughout your whole life and how they are just by talking to them and learning about them. So again, end of the day, guys, go with your gut. It’s also consistency too, I think, like if you’ve got kind of an intuition and it’s something that has steered you well in your jury selections, you should keep doing that.

01:01:12:05 – 01:01:28:01

It’s like the like blackjack. Do you hit at certain times? Do you hit on a 16 when there’s a certain card showing for the dealer? Well, I mean there’s some people do, some people don’t. Right. If you’ve got one of those situations where it’s kind of a toss up, trust your gut, go with what you know, be consistent.

01:01:28:01 – 01:01:48:10

And that can also help you in cases where like, maybe there’s a question about why you struck a certain juror, but if you’re being consistent, then you’re not going to get in trouble. Yeah. And I want to I want to actually talk about jury strikes a little bit and how we get to those 12. Right. Because it’s I think some people think when you go into a jury pool that you say, okay, I want that guy, that guy and that woman.

01:01:48:11 – 01:02:07:05

Like, that’s not how you get a jury. So, Justin, I’m going to jump over to you. How do jury strikes work and how does that actually result in the jury? Right. Because you got this whole pool of, say, 50 people will do easy math here, right? How do you get to which 12 of those 50 you actually put on the on the jury panel on the jury pool.

01:02:07:05 – 01:02:28:07

So for for I believe it’s for misdemeanors. Each side gets five. They call preemptive strikes. All that means is there’s we don’t have to give a reason for striking anybody unless there’s some type of like bias racial thing which you can challenge. It’s called a Batson challenge. Yes, yes. Which doesn’t really come up too often, but let me just touch on that, because I actually did have this come up once when I was a prosecutor.

01:02:28:08 – 01:02:47:19

Same. I had a defense attorney. Batson challenged me. And just so y’all know, kind of generally what a Batson challenge is. If a defense attorney is raising a Batson challenge, this means a prosecutor has struck a juror a preemptive strike, meaning they didn’t have to give a reason. They just set up for, you know, I don’t want this person.

01:02:47:19 – 01:03:13:09

And then the the the other side of the defense says, okay, well, I think you struck that person for an improper, unalloyed reason. Like, for instance, race, you know, my client is African American and that individual is an African American juror. And you struck them, I think, for no good reason other than their African American. And you don’t want to have someone with a like race on the jury pool.

01:03:13:09 – 01:03:33:03

So, I mean, that’s what a Batson challenge would be. And then that goes before the judge to make a decision after usually a sidebar discussion with the attorneys as to whether or not that was a proper strike or not. So that’s just what a Batson challenge is. But Justin, back to you here for strikes. So like I said, it’s it’s five for misdemeanors, seven for felonies.

01:03:33:03 – 01:03:51:19

And like I said, you don’t have to give a reason. So you can start anywhere in the jury pool. They well the way I did it and the way they do it here in York County is they will give you essentially a piece of paper with one through eight, nine through 14. So there’s the way the courtrooms are set up.

01:03:51:19 – 01:04:15:09

There’s rows of like pews. So they put, you know, again, the first eight, then I think it’s 9 to 14 and they’ll go back to the other side, back to the other side. And they actually have just boxes with each number. So one through 50. And again you can start anywhere in there. But once you start striking, once each side hits their number of strikes, whether it’s 5 or 7, whatever jurors left, they started number one.

01:04:15:10 – 01:04:42:08

Yeah. So if you want to start at 50 most of the time that’s not be pointless. It’d be pointless. Yeah, I will say there I think there was only one case where I specifically did not use all of my strikes. I’ve had defense attorneys, you know, use 4 or 5 for the felonies rather than seven. Just be like, you know, I’m content with, you know, the pool that we have or the the 12 that we have at this point, I usually try to use all of my strikes because it also goes for alternates.

01:04:42:08 – 01:05:03:15

So say, you know, I was good with the first 12, but then the first two alternates, you know, I wasn’t happy with or didn’t want you to start striking those people. Yeah, it really is. You know, again, you got to trust your gut and just strike the people that, you know, you think are going to be at least helpful or at least understanding of your case.

01:05:03:15 – 01:05:27:25

But like Tim said, we definitely want, you know, somebody that’s going to be fair to both sides, because if you have someone like Tim said, that’s on either of the extremes. It really couldn’t essentially torpedo that case, right? Yeah. So if all your good jurors are numbers like 40 through 50, you got to be really careful because you’re not getting to those people probably, you know, so, you know, you have to pick those jurors or strike those jurors.

01:05:27:25 – 01:05:44:22

I should say that you are in towards the beginning that you definitely need to have off your jury. Yeah. And you got to do math. Yeah. Right. You got to do math. Yeah. This is why lawyers did go to have a little bit of math. Because if it’s a misdemeanor, both sides get five. So you have to plan on ten.

01:05:44:22 – 01:06:03:19

Jurors are getting struck and then we’re going 12 after that. So that puts you at what 22. So your first 22 jurors on the panel are the ones that are that are potentially getting called. But I would I would strike below that threshold just to guarantee that it moves up. Right. So instead of instead of the 22, now it’s 21 that are being made or 20.

01:06:03:20 – 01:06:20:07

Now I’m locking in. Okay I like these top 20, maybe 21 and 22 aren’t so cool. So I’m striking below that. I’ll strike juror 45 and I would wave strikes to. I used to like doing that. It throws the other side off. Yeah. One of the one of the things that I think we should mention here too, with this is that there are strikes for cause.

01:06:20:14 – 01:06:39:23

So when we’re doing what dear and people are answering certain questions depending on what their answers are, like, you mentioned, you know, if someone had a crime essentially for Pennsylvania, it’s you have to be 18 years of age or older citizen of the county that you’re sitting on a jury in, and you cannot be cannot have been convicted of a crime punishable by a year or more.

01:06:39:23 – 01:07:02:20

So first, since DUIs are fine, but paraphernalia charge, you know, some of those other like minor crimes that we talked about will keep you off. If somebody is biased. I had a guy one time, the defendant was Hispanic and the judge asked the question. And every judge is different. Some judges will ask a ton of questions and then let a, you know, the prosecutor and defense attorney ask more.

01:07:02:20 – 01:07:23:19

Some judges just do like the initial routine. Is everyone a citizen? Are you a resident of the county, etc. but I had a guy, the defendant was Hispanic and the judge was like, is there anyone who feels it can’t be fair and impartial based upon the defendant’s race? And I had a guy stand up. Yep. Me. I was just like, okay, so let’s explore that a little bit.

01:07:23:26 – 01:07:39:17

And you know, we always do the as prosecutor, it’s like, okay, well, if the judge instructed you that you have to be fair and impartial, can you put all that aside? 99.9% of the time people are going to say yes. Every once in a while you’re going to get someone that says, no. You know, I feel so strongly about this that I won’t.

01:07:39:19 – 01:07:52:27

And this guy straight up is just like, nope. So he basically was just like, I’m racist, and people will do that kind of stuff to try to get off the jury. And again, you can kind of parse that out. This guy was dead serious, and that was the only time that ever happened to me where I was just like, oh man.

01:07:52:28 – 01:08:13:05

Like, obviously this guy is getting kicked out, but and when you when you have a strike like that for cause, right. And this can come in a lot of different ways, right. Like you said, obviously if someone cannot be fair and impartial for racial reasons or really any reason, yeah, they can be struck for cause. And that means that neither side is using a preempt or strike for this.

01:08:13:05 – 01:08:30:21

So it’s kind of like a free extra strike, right? But sometimes you have to kind of argue that with the judge a little bit and be like, oh, is this for cause, is it not? And and I’ve had those arguments again, most of the time it’s going to be both sides agree. But there are definitely some ones that teeter on the line.

01:08:30:21 – 01:08:48:26

And as a prosecutor, like I said, I mean, I argued that stuff all the time, especially in more serious cases where I wanted to get towards the back of that jury pool and some of these people were in the front, if I can argue for for cause and the judge strikes them for cause, that saves me a strike, right?

01:08:48:27 – 01:09:10:21

So that goes both ways. And like I said, there’s definitely people that will answer questions a certain way. You’re like, I don’t know, I don’t know. And sometimes the judge will raise them. But for the most part, in my experience and, you know, I’ve done a decent amount of trials, both sides usually come to that sidebar after both the Commonwealth and Defense gets asked.

01:09:10:21 – 01:09:30:14

Therefore, dear questions, and everybody’s kind of on the same page. Yeah, it’s definitely a strategic process. Yes, strategic from a lot of standpoints. But I think one of the things that I like to use a lot in trials is trying to think a little bit ahead about where might the other side use a strike that I also want to strike.

01:09:30:15 – 01:09:45:01

Yes. Yeah. But not use my strike. So I’m gonna let that play out a little bit and see if they kick them first. And then, you know, if they’re trying to make an argument for a cause strike sometimes, as I would, I would oppose that if I thought it was close. Make them use a strike on that person.

01:09:45:02 – 01:10:04:28

Don’t give them a free strike. You know, maybe that person is kind of favorable to me and maybe, maybe there is some cause there, but maybe the person walked it back and said they could be fair and impartial, right? Well, yeah. Maybe you have to burn a strike on that person, right? Yeah, it’s it kind of reminds me sometimes that those, was it the Lsat questions that you were.

01:10:04:28 – 01:10:19:04

You’re, like, picking people and, like, figuring out what order they’re not to get into that too much. But any of the lawyers out there know what we’re talking about. Those what they call those, those strategic games or something that you had to take. Logic puzzles. Logic puzzles? Yeah. Those. Yeah. Yeah, they were tough. I was terrible at those.

01:10:19:05 – 01:10:41:02

I’m not good at those either. Terrible. But yeah, like you said, I think for the picking the jury and being strategic with that, you have to be thinking five steps ahead. Yeah. Whether it’s a chess game, it is. And like Tim said, if you think the other side is going to use a strike on somebody that you also want to strike, you know, give them a little see, see what they’ll do.

01:10:41:03 – 01:11:06:02

What I used to do was almost every trial I did picking a jury, especially if it was a felony. And I had seven strikes. The first three strikes I had knocking out three people I absolutely do not want. That then gives the defense, you know, three strikes. We’ll see where they go. And then depending on where they went the next three, I would kind of use again a little bit more strategically to again see what they’re or see who they’re striking.

01:11:06:02 – 01:11:24:05

Is it somebody that, you know I want gone. Did they strike them. And then the last strike was usually for an alternate. Yeah. Did you guys have any like weird rules, like, you just take one look at a juror and you’re like, that person’s gone. Yes. What was like, the weirdest? You had a lot of them. Oh, like, I would just look at them like, oh, I didn’t really have, like, a hard rule.

01:11:24:05 – 01:11:43:02

I had a guy I can squirrely, like. Yeah. Like, I didn’t have hard rules either. But like, generally neck tattoos. I would look at you a little closer. If you had neck tattoos, I’d be already kind of leaning towards striking. Yeah, that was one of my things. I had a guy, I was doing a weed ID, and there was a guy that walked in with like a pot leaf on a shirt, and I was like, well, yeah, you’re going gone.

01:11:43:04 – 01:11:58:11

I didn’t, I would strike man buns to. I’d strike those people off the jury for the most part. And then I would also they like to free a thinker for you. I just don’t want to look at it all day. I don’t want to look at it for a week. And then sometimes I would also strike the Covid masks like, especially this far after the fact.

01:11:58:13 – 01:12:13:09

Like you’re still wearing a Covid mask to court. I’m doing you a favor. You don’t need to be here. Yeah, right. Right. Okay. All right. Yeah, yeah. I mean, I don’t really personally have any hard and fast rules. I mean, I definitely, like you said earlier, go with my gut. If I’m looking at somebody, I’m like, this person is a problem.

01:12:13:09 – 01:12:29:07

And I can tell just by looking at them, that’s your gut. That’s you got talking to you, you know, NASCAR t shirts. Yeah. You know, like NASCAR T-shirts. Well, you’re wearing a NASCAR t shirt to jury to jury selection. I’m probably striking you. That’s hilarious. I mean, I might want you on my jury. It depends on the case.

01:12:29:08 – 01:12:52:01

Yeah. And the driver? Which driver is it? Yeah. Jeff. Gordon. Yeah, yeah. You’re gone. All right, all right, guys. Well, I think we have gone over a lot here. You know, we have I think more to go over. But what I’d like to do is I’d like to kind of bifurcate this episode. I think next week we’ll jump into the actual trial itself.

01:12:52:03 – 01:13:22:15

I think we hit a lot on Verdier here in this episode. It’s a very interesting, I think, kind of fun process for everybody involved, all the participants, you know, the jurors as well. And I think another thing with Verdier that we didn’t mention that I think is really, really important as a defense attorney. It’s really your one time to really early, like connect with them and sometimes even be I mean, the case is allows for it be a little comedic, be a little personal, be engaged, be real.

01:13:22:17 – 01:13:45:02

You know, because that’s really what it comes down to. You guys, if I were Tim, you were saying earlier about giving advice to young, young attorneys. You know, I know we’ve talked about this here at our firm a lot. When you’re doing a jury trial, if you are anything other than yourself, if you were anything other than genuine and real and even to your faults, real, they’re going to see through it.

01:13:45:03 – 01:14:04:11

12 people will absolutely see through that. I remember when I was a prosecutor years ago, one of my first jury trials, I tried to be like Superman prosecutor on some stupid welfare fraud case that I absolutely had the facts to win. And the jury. Absolutely. They went in there and they just found the person not guilty because I was an ass.

01:14:04:13 – 01:14:23:03

That’s why they found the person not guilty. And that taught me early on that I need to be myself because I was I was in there being Superman, trying to be like some big old bad prosecutor. And, you know, while it might have felt good to me in the moment, it it stung a bit afterwards when I was like, wow, I really screwed that pooch, you know?

01:14:23:03 – 01:14:47:16

And I really messed that up. But in any event, bottom line, guys, here for for you to take away from this episode, I think that we’ve kind of torches in everything you do as an attorney. Everything we do, your gut matters. Go with it. Listen to it. Use your own life experiences in picking juries in and deciding whether or not a jury will be receptive to your trial arguments.

01:14:47:19 – 01:15:06:11

And you have to have those discussions with yourself and with your client prior to going to trial. Because once you’re in that room, meanwhile, Achaea can always decide to later plead guilty. I mean, if you’re picking that jury deals are usually off the table at that point. I mean, you’re going to trial and you need to be making the right decision and have the right strategic argument.

01:15:06:11 – 01:15:29:26

So more to come on that we’re going to get into how the trial works next week and how that plays out and a lot. And what I, what I just indicated about kind of knowing what your questions are and how to connect with the jury even during the trial process. Make sure you check us out on TikTok, Instagram, YouTube, Spotify, the Now We Defend podcasts by Kearney Law had a lot of fun.

01:15:30:03 – 01:15:32:21

Thanks guys for being here today. Y’all take care.