Chapter 12 Pretrial Matters

• Library: How to Try a Murder Case: Pretrial and Trial Guidelines for Prosecution and Defense (ABA) (2011 Ed.)

CHAPTER 12 Pretrial Matters

Several pretrial matters deserve to be discussed. These unrelated topics are collected in this chapter.

Pretrial Motions

As in most other criminal cases, most of the pretrial motions are made by the defense. Usually the judge assigned to the case will have set a briefing schedule and a timetable for the various stages of the case. These court orders go by various names, but we will call them trial management orders. If you are prosecuting, it is important that the trial management order gives both sides the same amount of time to prepare the motions as to answer them. An order that gives two months to file motions and only two weeks to answer them can have a devastating effect on the prosecution. In a capital case for instance, it is common to see numerous pretrial motions that attack the death penalty, either per se or as applied to the defendant, and several other motions, some of which may propose novel and unique issues that have no precedent. If the order permits the defense two months to file the motions, 50 motions may be filed on the last day. If the order gives only two weeks to answer those motions then the prosecutor will have a difficult time preparing an individual answer to each motion.

There are resources that are available to each side to assist in the preparation of motions and oppositions in capital cases. For prosecutors, it is very important to coordinate your motions and answers with the attorney who will be handling the appeal of a murder conviction. In many cases that will be the criminal appeals division of the state's attorney general's office, or its equivalent. For defenders, there are numerous offices and websites that can be of assistance. Samples of standard motions can be found at many websites and can be obtained from many offices throughout the country. One of the most exhaustive lists of sample motions for capital cases as of this writing can be found at the North Carolina Court System's Office of Indigent Services.¹ Defenders and prosecutors ought to take a look at these motions to be prepared to deal with these topics.²

Motions to File as Soon as Defendant Is Charged

• Ex Parte Motion to Seal Portion of Juvenile Record
• Motion to Preserve State's Files
• Motion to Compel State to Disclose Evidence That Would Assist Motions Filed by Defendant to Have a Reasonable Bond Set

Racial Justice Act Motions

• Motion for Discovery of Information Relevant Under the Racial Justice Act
• Motion to Prohibit the State from Seeking the Death Penalty Under the Racial Justice Act
• Motion to Extend Time to File Claim Pursuant to the Racial Justice Act
• Motion to Continue Trial to Investigate Claim Pursuant to the Racial Justice Act
• Motion to Reopen Rule 24 Conference to Investigate Claim Pursuant to the Racial Justice Act

Other Pretrial or Prearrangement Motions

• Request for Discovery
• Motion to Compel Investigating Oficers to Turn Over All Information Related to the Investigation of This Case to Prosecutors
• Motion to Memorialize Discovery Provided by the Prosecutor Pursuant to an Open File Policy
• Motion for Production of Exculpatory Information
• Motion for Bill of Particulars
• Motion to Disclose Penalty Phase Information
• Motion for Separate Juries
• Motion to Prevent the State from Seeking the Death Penalty and Objections to this Court Declaring This Case Capital
• Motion for Disclosure of Identiication Procedures
• Motion to Require the State to Disclose any Exculpatory or Impeaching Information That Was Told to the Prosecutor in Private or During His Preparation for Trial
• Motion for Pretrial Hearing to Determine that Defendant is Mentally Retarded
• Motion for Disclosure of State's Theory of Acting-in-Concert
• Motion to Compel State to Disclose Felonies It Intends to Use to Support Felony-Murder Theory
• Motion to Compel State to Disclose Theory upon Which It Seeks a Conviction of First-Degree Murder
• Motion for Disclosure of Aggravating Circumstances
• Motion for Continuance
• Motion to Prohibit a Death Sentence Based on the International Covenant on Civil and Political Rights and Customary International Law
• Motion for Separate Trial
• Motion to Reveal Deals or Concessions
• Motion to Obtain Mental Health Records
• Motion for Disclosure of Evidence of Alleged Prior Bad Acts or Crimes of the Defendant Which the State Contends are Admissible Under Evidence Rules 404(b) or 608, or Other Rules of Evidence
• Motion in Limine: Unrecorded Statements of Defendant

Guilt Phase

• Motion for Complete Recordation of All Proceedings
• Motion to Allow Defense Counsel to Distribute a Questionnaire to Potential Jurors
• Motion to Preclude Death Penalty
• Motion for Preselection Instructions to Potential Jurors
• Motion to Preclude Leading Questions and Conclusory Statement on Voir Dire of Prospective Jurors
• Motion for Individual Voir Dire on Sensitive Subjects
• Motion to Exclude Still Photographers, TV Cameras, and Microphones from the Courtroom
• Motion to Prohibit Prosecutor from Telling the Jury that Mitigating Factors Are Things that Reduce the Severity of the Crime
• Motion to Allow Defense Counsel to Question Any Potential Jurors Challenged for Cause by the Prosecutor Based on Opposition to the Death Penalty
• Motion to Prohibit District Attorney from Peremptorily Challenging Black Prospective Jurors
• Motion for Court to Note the Race of Every Potential Juror Examined in This Case
• Motion to Require Sequestration of State's Witnesses
• Motion in Limine to Prohibit Reference to Defendant's Silence
• Motion to Exclude Photographs
• Motion to Bar the State from Presenting Inconsistent Theories of Prosecution
• Request for Special Instruction on the Highest Aim of Every Criminal Trial
• Motion in Limine to Limit Testimony of Statements of Defendant

Additional Guilt Phase Materials

• Memorandum Re: Jury Voir Dire
• Jury Selection Questions

Beginning of Sentencing Phase

• Motion for Ruling on the Sufficiency of the Evidence of Prior Criminal Conduct of the Defendant to Support Submission of the § 15A-2000(f)(1) Mitigating Circumstance
• Motion to Allow Defendant to Address the Jury
• Motion to Limit Victim-Impact Evidence

Penalty Phase Instructions Requests

• Motion to Instruct Jury on Emotionally Troubled Youth as a Mitigating Circumstance
• Motion to Instruct Jury on Evidence of Low IQ
• Motion to Preclude State from Using Any Juvenile Conviction as an Aggravating Factor
• Motion to Instruct Jury on Satisfactory Prison Adjustment
• Motion to Instruct the Jury on Age as a Statutory Mitigating Factor
• Request for Jury Instruction Under Enmund v. Florida and Tison v. Arizona
• Request for Jury Instruction Re: Sympathy and Mercy
• Request for Jury Instruction Deinition of Mitigating Circumstance
• Request for Jury Instruction: Life Without Parole (I)
• Request for Jury Instruction: Life Without Parole (II)
• Request for Jury Instruction: Residual Mitigating Circumstance
• Request for Jury Instruction: Residual Doubt
• Request for Jury Instruction on Personal Viewpoints
• Motion to Instruct Jury on Defendant's Burden of Proof on Mitigating Circumstances
• Motion for Peremptory Instructions on Mitigating Circumstances
• Motion for Court to Give Understandable Jury Instructions

Attachment A: Discretion in Capital Sentencing Instructions
Attachment B: Understandable Jury Instructions

• Motion to Restrict Prosecutor's Argument

Additionally, in Appendix E to this book are some sample motions and answers applicable to capital and noncapital cases.

Defense counsel may be conflicted as to whether or not to file motions that might be called "frivolous." If defense counsel files frivolous motions, the trial judge may take a dim view of defense counsel and might give less credibility to that counsel's arguments in favor of more meritorious motions, or even impose sanctions for filing frivolous motions. On the other hand, if the trial defense counsel fails to file frivolous motions, there is always the possibility that an appeal might be filed alleging that the defendant did not receive a competent defense because some motions were not filed that in the appellate counsel's opinion should have been filed.

Any motion that needs to be supported by live testimony of government witnesses, pretrial, is an opportunity for the defense to evaluate the nature and strengths of the government's case. This allows the defense to conduct what is essentially a dress rehearsal for the trial and will allow the defense to evaluate the quality of the opposing case. Any motion that forces live testimony can be an invaluable tool for learning the strengths and weaknesses of the government's witnesses. Motions that involve the necessity of live testimony can be of great value to the defense for this reason. Further, motions to suppress can sometimes be dispositive of a case. Photo identifications and warrantless searches and seizures are prime targets for confronting government witnesses. It is a real plus for defense counsel to be able to conduct cross-examination without having to worry how it is affecting a jury. For these reasons, it is imperative for defense counsel to visit the scene prior to litigating any issue of arrest, search and seizure, or identification. There is nothing like having a familiarity with the crime scene. It is also an opportunity to talk to neighbors and potential witnesses first hand.

Gruesome Exhibits

One would think that today, with CSI and other television programs showing gruesome bodies and an autopsy sometimes appearing on television as the family eats dinner, evidence of this type would be processed by members of the jury in a neutral way, simply for its scientific usefulness. In fact, some have cited as a reason for admissibility of gruesome photographs the ubiquitous availability of such pictures, from violent films to the photos and video shown on the television news from war zones and catastrophes around the world. As one Justice in Australia put it...