Thursday, November 12, 2015

PRETRIAL MOTION PRACTICE IN CAPITAL CASES

About twelve years ago, while I was still an active prosecutor, I was asked to write an article on pretrial motion practice in capital cases for a series of continuing education seminars to be held by various prosecutors' associations. I wrote the article, and I got to do a little traveling, giving a talk on the subject at the seminars. I was going through some papers today and found the article. I skimmed over it, and although it's somewhat dated, I think it still has some relevance to the subject. I'm setting the text of the article out below so that you, the reader, can decide whether it still has relevance. I have made one change in the article. When I presented it, they didn't like one thing I said and changed the language. I have kept the language they put in, underlining it, and I have replaced the language they took out, putting it in boldface. I'm going from memory with the replacement language, but as best I can remember, that's pretty close to what I originally wrote. To make the language flow more naturally in that section, I've added a bracketed sentence.


PRETRIAL MOTION PRACTICE IN CAPITAL CASES
George R. (Bob) Dekle, Sr.
 
Horace Rumpole is a fictional English barrister who is best known as the hero of a series of PBS Mystery shows.  As delightful as those shows may be, practicing lawyers will find the series of Rumpole books (now extending to thirteen volumes and three omnibus collections) to be even more congenial.  In those books, Rumpole repeatedly makes sharply incisive observations on the practice of law in general and criminal practice in particular.  Rumpole’s aphorisms are not only humorous, they’re usually dead-on accurate.  In one particular story Rumpole was reminiscing about the bad old days before England did away with the death penalty.  He asked the rhetorical question “How do you try a capital murder?” and gave the arresting answer: “Just like any other case.”  
If he meant “Ideally, in the best of all possible worlds, how should you try a capital murder?” then his answer deserves our whole hearted endorsement.  We should hold ourselves to the same standards of excellence, no matter what type case we are trying.  We should not save our A-game for these important cases.  If he meant “In the world which we inhabit, if we are prudent, how should you try a capital murder?” then his answer is a recipe for disaster.  In Gregg v. Georgia, 428 U.S. 153, 188, 96 S.Ct. 2909, 2932, 49 L.Ed. 2d 859 (1976), the Supreme Court first used a phrase that, as of June of 2004, (Schriro v. Summerlin, 542 U.S. 348, ___, 124 S.Ct. 2519, 2526, 159 L.Ed. 2d 442) it had repeated in 19 additional decisions, “death is different.”  This phrase has become a mantra for the anti-death penalty forces, and it is a phrase which prosecutors involved in capital litigation hear ad infinitum and ad nauseum.  

In any courtroom trying any charge, as the stakes go up, the probability of oddity goes up.  The more the accused stands to lose, the more waves are going to be made.  A first time DUI defendant facing standard fines will likely plead guilty.  An habitual DUI defendant with deep pockets will likely do something else.  Most shoplifting trials are rather mundane affairs, but if the defendant happens to be a movie star, things become somewhat strange.  Murder prosecutions almost always combine high stakes with notoriety.  When the charge is capital murder, the astronomical stakes, the intense notoriety (if only on a local scale), and the fact that death really is different all combine to make for an experience that is more than strange, it is positively surreal.  You have fallen down a rabbit hole; you are not in Kansas any more; you do not have any ruby slippers; and the broadly grinning cat keeps disappearing and reappearing.
In a normal case, you expect to get pretrial motions to suppress evidence, for statements of particulars, to compel discovery, and a few other routine types of familiar motions.  In a capital case you can expect the unexpected.  Death penalty defenders hold seminars and establish web pages.  They get together and exercise their considerable inventiveness to come up with some unique motions.  In no particular order, we will list, with comments, the captions of a few motions suggested by various death penalty defense groups:
1.         Motion for Jury View of the Execution Process: (a blatant appeal to emotion, having nothing to do with any logical considerations of whether a defendant ought or ought not to be executed).

2.         Motion to Exclude Latter-Day Voodoo Serology Evidence Proposed by State Experts:     A responsible pleading should not ask and answer such a loaded question in its caption.  It should carry the sober caption Motion to Exclude Serology Evidence and then allege facts sufficient to prove the evidence should be excluded.
3.         Motion to Exclude Bogus Statistical Evidence Proposed by State Experts: This particular motion suffers the same infirmities as the previous. 
4.         Motion to Prohibit Prosecutorial Misconduct: (Unsettling, disquieting, yet motions of this nature have been filed).
Motions of this ilk can be and are filed by the score in capital murder cases in this country.  Other motions which are less offensive but partake the same quality are filed by the hundreds.  The capital prosecutor can find himself or herself quite literally buried beneath an avalanche of motions ranging from the laughable to the laudable.  In one  multiple defendant case prosecuted in North Florida during the mid-1980's, when the tally of pretrial  motions exceeded 200, the trial judge ordered a deadline for the filing of motions.  When the deadline passed, he was immediately bombarded by a series of motions for leave to file additional motions.    

Pretrial motions in capital cases fall into four broad categories: 1. Frivolous; 2. Cutting Edge; 3. Boilerplate; and 4. Meritorious.  We shall first examine frivolous motions.  What would account for the filing of frivolous motions?  What type of lawyer would file frivolous motions?  The first type believes that the death penalty is the ultimate evil and that it should be opposed by all available means.  As Anthony Flew observed in How to Think Straight, paras. 1.42, 1.43, when we truly believe in a proposition, we tend to uncritically accept wretched arguments supporting that proposition.  True believers, therefore, oftentimes do not recognize the frivolous nature of a motion such as the one asking that the jury be required to view an execution before deciding whether their client should be executed.  While the prosecutor’s knee-jerk reaction toward a true believer may be one of scorn; patience will serve us better. 
The second type of attorney who may file frivolous motions is the incompetent.  In the early days of capital litigation, these people were allowed to defend capital cases.  The results were disastrous, however, not in the way the foes of the death penalty would have you think.  Scores of innocent people were not put onto death row because of the incompetence of their lawyers.  Scores of guilty people were let off of death row because of the incompetence of their lawyers.  Reviewing courts, both on appeal and collateral attack, appalled by the level of incompetence, reversed and vacated death penalties at an alarming rate.  . 

The Florida Supreme Court recognized the problem of incompetence in capital cases and took vigorous measures to combat it.  They promulgated Rule 3.112, Florida Rules of Criminal Procedure, which mandated minimum experience and continuing education requirements for capital counsel.  This rule ameliorates but does not alleviate the problem.  Just as one can graduate from law school and pass the bar and still be incompetent, it is possible for this same lawyer to meet Rule 3.112's  minimum experience and continuing education requirements..  What must a prosecutor do when confronted by an incompetent?  Help him or her as much as possible.  Guide him away from land mines.  Point her in the right direction when she goes astray.  Do whatever can be done to keep the attorney from committing malpractice.  It is especially galling to have to do this when you are confronted by an obnoxious incompetent, but there is no help for it.  You must do what you must do to insure, insofar as possible, that you will achieve a death sentence that will withstand the slings and arrows of outrageous litigation.
There is a third type of lawyer who files frivolous motions.  They file a barrage of frivolous motions then argue each motion as though the fate of Western jurisprudence hangs in the balance, and a denial will result in the greatest miscarriage of justice since the trial of Socrates.  This attorney may slip in a meritorious motion.  A judge who has just denied fifteen consecutive vigorously argued frivolous motions is likely to deny the sixteenth meritorious motion by sheer reflex. 

Which brings us to meritorious motions.  How should we deal with them?  What if we believe the motion to be meritorious under the law, but we believe the law to be wrong?  Should we oppose the motion in hopes that we can achieve a landmark legal decision?  No hard-and-fast answer can be given to such an abstract question, but in answering that question in a concrete situation, it is well to also ask a second question.  What is the cost/benefit ratio of introducing another issue into a case already beset with myriads of issues? [And what if the motion is meritorious, fully supported by the evidence, and firmly based on good law?] Agree that the motion should be granted. Remember, we’re out to do justice, not just to convict.
Cutting edge motions come as the synthesis of two things, the language of Supreme Court opinions and the creativity of defense counsel.  It is impossible to tell what seemingly innocuous statement of the Supreme Court will become the ore from which the next wave of cutting edge motions will be refined, but it may be instructive to study the history of a wave which may have already crested.  Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), stood for the seemingly unremarkable proposition that a sentence in excess of the statutory maximum had to be supported by allegations contained in the charging document and a jury finding.  It certainly was unremarkable in Florida where our legislature has enacted numerous statutory enhancement provisions, each of which has been held by our Supreme Court to require an allegation in the charging document and a finding of fact in the jury verdict.

Now that the Supreme Court has made its pronouncement, how far can it be stretched?  The answer came two years later in a pair of cases, Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406 (2002), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428 (2002).  Harris confronted the issue of whether a mandatory minimum for an aggravating factor could be imposed absent a jury finding that the aggravating factor existed.  The Supreme Court held that since the aggravating factor did not cause the sentence to exceed the statutory maximum, it didn’t need to be either pled in the charging document or found by a jury. 
Ring addressed Apprendi’s applicability to capital sentencing.  The Supreme Court had already held in Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), that it was perfectly alright for a judge to make a factual finding of aggravating circumstances after a jury verdict of guilty of capital murder.  When the Court decided Apprendi, it specifically found that Walton was still good law, holding that the jury found the elements of the crime of capital murder, which made the death penalty applicable, and “once a jury has found the defendant guilty of all the elements of an offense which carries as its maximum penalty the sentence of death, it may be left to the judge to decide whether that maximum penalty, rather than a lesser one, ought to be imposed.”  497 U.S. at 497. 
Since Apprendi dealt with sentences beyond the statutory maximum, and since the statutory maximum for capital murder is the death penalty, and since the Supreme Court held that Walton was still good law when it decided Apprendi, it would seem obvious that Apprendi does not apply in capital cases.  But lawyers on the cutting edge of the law sought to extend Apprendi to capital cases, and they filed their motions accordingly.  Ring was not a logical decision.  Ring was an ethical decision.  Regardless of the logical language of Apprendi in recognizing that Walton was still viable because the death penalty is the statutory maximum for capital murder, it does not seem ethical that a grand theft charge carrying a statutory maximum of five years requires a jury finding as a predicate for increasing it to six years while a capital murder requires no jury finding as a predicate for imposing the death penalty. 

The ripples of Apprendi are not spent.  The next wave of Apprendi based motions will most likely insist that the aggravating circumstances be alleged in the indictment.  Pretrial motions of this ilk have been around for decades in the form of motions for statements of particulars as to aggravating circumstances.  Such motions are prime examples of the third type of pretrial motion, boilerplate.  In Florida, capital litigants have been filing these motions since the early seventies, and they have been undeterred by a line of cases stretching from Clark v. State, 379 So.2d 79 (Fla. 1979), to Cole v. State, 841 So.2d 409 (Fla. 2003), holding that the defense is not entitled to such a statement of particulars.
 There are two perfectly good reasons that an advocate would file such a motion.  The first is self preservation, the second is issue preservation.  Capital convictions are the most thoroughly scrutinized convictions in the criminal justice system.  Any lawyer who undertakes to represent a capital defendant had better do a more than competent job, he or she had better do a job that appears competent.   Filing boilerplate motions gives the appearance of competence. 
They present the motions, acknowledging  the law is against them, and state that they are preserving the record against a future possible change in the law.   

Which brings us to the most cogent reason to file boilerplate motions.  Courts change their minds.  Precedent gets overruled, and if you haven’t preserved the issue, you lose it.  For example, for over twenty years the Florida Supreme Court has consistently held that the defendant is not entitled to a statement of particulars as to aggravating circumstances on the penalty phase of a capital murder.  They have just held that it is within the trial court’s discretion to order a statement of particulars as to the aggravating circumstances. State v. Steele, ___ So.2d ___, 2005 WL 2509284 (Fla. No. SC04-802, October 12, 2005, rehearing denied February 2, 2006).  What finally brought this about was the dogged determination of defense counsel in repeatedly filing and refiling this motion until the Supreme Court reconsidered it.  Who knows the next well-settled area of the law that will be unsettled by an appellate court revisiting the issues raised in a boilerplate motion?  It was the repeated filing of such boilerplate motions that eventually led to the modern rules of liberal discovery in criminal cases.  For example, it is black letter law that a motion for statement of particulars can seek only to narrow the allegations contained in the charging document, but in State of New Jersey versus Bruno Richard Hauptmann, the defense filed a twelve paragraph demand for bill of particulars requesting disclosure of circumstantial matters that would nowadays be the subject of criminal discovery, e.g., whether all the ransom notes were written in the same hand and whether Bruno Richard Hauptmann wrote them.  Record on Appeal, pp. 4558-4566.  Although these particular requested disclosures were denied, other pre-discovery motions for bills of particulars were sometimes successful.  In Peel v. State, 154 So.2d 910 (2nd D.C.A., Fla. 1963), a motion for bill of particulars requested, and the trial court ordered, that the state give the defense a list of the names and addresses of the witnesses the state intended to call at trial.  Eventually boilerplate motions for statements of particulars gave way to today’s liberal criminal discovery rules.

The capital prosecutor frequently encounters motions to disqualify trial judges.  The rules governing disqualification of trial judges from state to state may vary, but the dynamics should remain constant.  The defense must present a logical, legal reason for believing the trial judge to be biased, and this oftentimes consists of an attack on the judge’s character, which is likely to stir up emotion in the form of anger.  Aristotle’s dictum about warping the carpenter’s rule was never more appropriate than in the situation of a motion to disqualify.  One example from history will suffice to make the point.

When Theodore Robert Bundy stood charged with the Chi Omega murders in Tallahassee, Florida, the Hon. John A. Rudd presided over his case.  Judge Rudd was an excellent judge whose integrity was above reproach.  Nevertheless, the defense filed a motion to disqualify Judge Rudd pursuant to Rule 3.230(d), Florida Rules of Criminal Procedure (now Rule 2.160, Florida Rules of Judicial Administration).  Without hearing, Judge Rudd denied the motion on its face, finding it legally insufficient to state grounds for recusal.  Judge Rudd, however, went farther than merely ruling on the legal sufficiency of the motion.  He further undertook to refute the allegations contained in the motion.  A petition for writ of prohibition followed, and the Supreme Court granted it, with the following language: “our rules clearly provide, and we have repeatedly held, that a judge who is presented with a motion for his disqualification ‘shall not pass on the truth of the facts alleged nor adjudicate the question of disqualification.’” Bundy v. Rudd, 366 So.2d 440, 441 (Fla. 1978).  The Florida rule required the judge to pass solely on the legal sufficiency of the allegations stated in the motion, not their veracity.  Once the judge undertook to refute the factual allegations, he placed himself in an adversarial relationship with the defendant and, by that fact alone, had to be disqualified.  If the accusations of the motion to disqualify could warp the rule, the judge might be baited into error. 
Surprisingly, when the Hon. Edward D. Cowart was appointed to take Judge Rudd’s place, one of the first motions filed by the defense was a motion to disqualify Judge Cowart.  After a full adversarial hearing on the motion, Judge Cowart simply found that the motion was legally insufficient.  In the wake of Bundy v. Rudd, it became incumbent upon capital prosecutors in Florida to educate their trial judges as quickly as possible to the nuances of motions to disqualify.  This usually took the form of filing a reply memorandum setting out the law (by return mail with copy to the judge) immediately upon receipt of a motion to disqualify.
A variation on the theme of disqualifying the trial judge is the motion to disqualify the prosecutor.  Here the rules probably won’t be quite as formalized as with the disqualification of the trial judge, but the potential for warping the rule is even greater.  It is not someone else whose integrity is being besmirched by the motion, it is you yourself.  You must work to let logic govern your actions and to dispel emotion from the slightest consideration.  The best course of action is to have a colleague answer the motion.  If you do it yourself, you are likely to fall into Judge Rudd’s error and either confuse the issues by offering a refutation where none is needed or worse yet, creating the very situation you are seeking to refute.
A standard assault on the death penalty, and one of ancient vintage, is the statistical assault.  The death penalty is unconstitutionally applied in racially discriminatory way because of a perceived statistical imbalance in the racial makeup of those who receive it.  Indeed, in holding the death penalty (as then applied) unconstitutional, the Supreme Court in Furman v. Georgia, 408 U.S. 238 (1972), used the terms “statistic” or “statistical” no less than thirty four times, and Justice Marshall condemned the death penalty as both racially and “genderly” discriminatory on the basis of statistics alone.  408 U.S. at 364, 365.   

Unsurprisingly, one of the first attacks on the newly constituted death penalty was a statistical one.  In McCleskey v. Kemp, 481 U.S. 279 (1987), the petitioner made a statistical attack on the Georgia death penalty by means of a study which the Supreme Court called the “Baldus study,” but which has ever after been known as the “McCleskey study.”  The results of the Baldus study compiled raw statistics for 2,000 murder cases prosecuted in Georgia since the reinstatement of the death penalty.  The raw data was then studied and restudied in the light of 230 variables and the bottom line finding was that murder defendants who killed whites were 4.3 times more likely to get the death penalty than murder defendants who killed blacks and black murder defendants were 1.1 times more likely to get the death penalty than white murder defendants.  This was presented as clear evidence of racial discrimination.  Before considering the significance of these or any statistics it is well to consider the caveats of two distinguished British philosophers:
 
Statistics are the chemical weapons of persuasion....  Release a few statistics into the discussion and the effects are immediate: eyes glaze over, jaws slacken, and soon everyone will be nodding in agreement.  You can’t argue with numbers.  Yes you can.  Even when the numbers are right, they often don’t show what they are alleged to.  Jamie Whyte, Crimes Against Logic, McGraw-Hill, New York, 2005, p. 133.
 
 
Certainly a scandalous amount of hocus-pocus with statistics is executed in the frequently fulfilled intention of deceiving other people about what various figures, which are in themselves uncorrupted, do really prove.  But there is also an abundance of self-deception, as well as a deal of error which is not the result of bad faith on anyone’s part.  Antony Flew, How to Think Straight, Prometheus Books, Amherst NY, 1998, para. 6.5.
 
            Flew goes on to say that, in evaluating statistics “What is needed first, and most, and all the time, is an unspecialized critical alertness.”  Ibid. para. 6.10. 
            In the exercise of unspecialized critical alertness, the trial court found that McCleskey's "statistics do not demonstrate a prima facie case in support of the contention that the death penalty was imposed upon him because of his race, because of the race of the victim, or because of any Eighth Amendment concern." McCleskey v. Zant, 580 F. Supp. 338, 379 (ND Ga. 1984).  The Court went on to find the study’s methodology to be flawed and held that it “fail[ed] to contribute anything of value" to McCleskey's claim. Id., at 372 .  On review the Eleventh Circuit opined:

"Viewed broadly, it would seem that the statistical evidence presented here, assuming its validity, confirms rather than condemns the system. . . . The marginal disparity based on the race of the victim tends to support the state's contention that the system is working far differently from the one which Furman [v. Georgia, 408 U.S. 238 (1972)] condemned. McCleskey v. Kemp, 753 F.2d 877, 899 (1985).
 
When the Supreme Court looked at the case, it held that in order to prevail, McCleskey had to prove a specific intent to discriminate against him on the basis of race.  It rejected McCleskey’s claim that the statistical study gave rise to an inference of discrimination because the nature of the capital sentencing decision, and the relationship of the statistics to that decision, are fundamentally different from the corresponding elements in cases where they had accepted mere statistics as proof of discrimination.  The Court bottomed its refusal to accept mere statistics as proof of discrimination upon the existence of a legitimate, non-discriminatory, and unchallenged explanation for the decision to impose the death penalty: “McCleskey committed an act for which the United States Constitution and Georgia laws permit imposition of the death penalty.”  481 U.S. at 295.
In United States v. Armstrong, 517 U.S. 456 (1996), a case seeking discovery of government records in a quest to establish racial discrimination in the prosecution of crack cocaine cases, Armstrong presented a statistical study showing that 90% of all persons prosecuted for sale of crack cocaine were black.  He then contended that this fact gave rise to a sufficient showing of racial prejudice for him to be allowed to rummage through the government’s files looking for further proof of racial discrimination.  Although the Eleventh Circuit agreed with Armstrong’s argument, the Supreme Court didn’t.  The Court pointed out that:

            The Court of Appeals reached its decision in part because it started "with the presumption that people of all races commit all types of crimes not with the premise that any type of crime is the exclusive province of any particular racial or ethnic group." 48 F.3d, at 1516-1517. It cited no authority for this proposition, which seems contradicted by the most recent statistics of the United States Sentencing Commission. Those statistics show that: More than 90% of the persons sentenced in 1994 for crack cocaine trafficking were black, United States Sentencing Comm'n, 1994 Annual Report 107 (Table 45); 93.4% of convicted LSD dealers were white, ibid.; and 91% of those convicted for pornography or prostitution were white, id., at 41 (Table 13). Presumptions at war with presumably reliable statistics have no proper place in the analysis of this issue. 517 U.S. at 469 470.
 
            The Court held that in order to establish entitlement to the requested discovery,  Armstrong must produce credible evidence that similarly situated defendants of other races could have been prosecuted, but were not.  Armstrong’s statistical study failing to make such a showing, he should have been denied relief.
In United States v. Bass, 536 U.S. 562 (2002), Bass sought discovery of the governments files in aid of a claim of racially discriminatory prosecution or in the alternative dismissal of the government’s notice of intent to seek death penalty.  He offered a statistical study showing that
 
"[t]he United States charges blacks with a death-eligible offense more than twice as often as it charges whites" and that the United States enters into plea bargains more frequently with whites than it does with blacks. 266 F. 3d, at 538-539 (citing U. S. Dept. of Justice, The Federal Death Penalty System: A Statistical Survey (1988-2000), p. 2 (Sept. 12, 2000)).  536 U.S. at 862.
 
            When the government refused to make the disclosure, the trial court dismissed and the Sixth Circuit affirmed.  In a decision of remarkable brevity (under 400 words), the Supreme Court observed that “raw statistics regarding overall charges say nothing about charges brought against similarly situated defendants,”(emphasis original) and held: “The Sixth Circuit's decision is contrary to Armstrong and threatens the "performance of a core executive constitutional function." Armstrong, supra, at 465. For that reason, we reverse.” Id.

The import of this line of cases is clear.  A mere showing of statistical disparity will not support a finding of discrimination.  In order to prevail on a claim of selective prosecution, the defendant must show not only a discriminatory effect, but also a discriminatory intent.  This must be done by showing that similarly situated defendants of a different race were treated differently.  A mere showing of statistical disparity will not even form the basis for an order for discovery of  prosecution records to search for evidence of a discriminatory intent.  This is because the decision to seek the death penalty is a decision within the core executive constitutional function of the prosecutor.

The prosecution need not be completely on the defensive during the pretrial phase of a capital case.  There are proactive measures that can and should be taken.  Most states now provide for at least minimal discovery in criminal cases, and some of those discovery provisions benefit the prosecution.  The America Bar Association has promulgated discovery standards which have been more or less adopted by several states.  Florida (Rule 3.220) and Arkansas (Rule 18.1) have both adopted a modified form of Standard 11-2.3, dealing with disclosures from the defendant’s person.   Each state rule has the caveat that such disclosures must be made within constitutional limitations.  This should be read to mean that seizures of such items as hair standards and blood samples should be supported by court order finding probable cause upon the basis of sworn affidavit. Often such seizures as provided for in these rules have already been made prior to the finding of an indictment pursuant to search warrant, consent seizure, or by other means, but oftentimes they are not. 
With the rise of DNA databases, “cold case” hits are becoming more and more prevalent. As inmates are received into prison, their DNA is collected and added to the state DNA database, and then it is compared against DNA collected in old, unsolved cases.  The old, unsolved cases then become old, solved cases.  While such hits give probable cause for arrest, most DNA databases don’t maintain a sufficient chain of custody for evidentiary purposes.  For prosecution, you must pull another DNA sample under strict evidentiary conditions, and the discovery rules patterned after Standard 11-2.3 provide a mechanism for doing just that.  
ABA Discovery Standard 11-2.2 provides for self-executing discovery by the defense, including the disclosure of certain specific defenses.  As promulgated into rule, the disclosure of specific defenses normally requires a demand of some sort by the state.  Rule 3.200, Florida Rules of Criminal Procedure, provides only for disclosure of the alibi defense and then only if the state first gives the defense a statement of particulars as to date, time, and place of the crime.  It is quite a superfluous provision, as Rule 3.220, Fla.R.Crim.P., provides for disclosure of defense witnesses and depositions on demand.  Rule 18.3, Arkansas Rules of Criminal Procedure, on the other hand, provides that (subject to constitutional limitations) the prosecutor may request to be informed of the defense in advance of trial, as well as the witnesses supporting the defense.  Florida would appear to stand on one end of the spectrum of such provisions (limited disclosure to the point of near uselessness) and Arkansas on the other (disclosure limited only by constitutional strictures).  To what extent one should avail oneself of such a state rule would depend upon where on the spectrum the state rule fell.

The Federal Rules of Evidence provide opportunities for proactive pretrial settlement of issues which can greatly expedite the trial of a capital case.  One of those provisions is Rule 201, relating to judicial notice.  Again, that rule has been adopted and adapted by many states (e.g. Florida Statute §§ 90.202 & 20.203 and Rule 201, Arkansas Rules of Evidence.  Whereas the Federal Rule and the Arkansas Rule provide that judicial notice is compulsory if it  is “requested by a party and [the court is] supplied with the necessary information.”  The Florida rules require timely written notice.  Although written notice and a pretrial hearing may not be required by the state rule, it makes sense as good housekeeping.  It seems better to spend a few hours before trial disposing of such matters than to chase a jury out of the courtroom to stare at the walls of the jury room while the issue is decided mid-trial.  Such delays will be numerous enough without adding to them hearings which could have been settled pretrial.
Federal Rule of Evidence 1006 provides another little used but useful tool.  The rule provides for introduction of massive amounts of evidence in the form of summaries, and it too has been adopted by many states.  E.g. Fla.Stat. § 90.956; Arkansas Rule of Evidence 1006.  The rule provides that the contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation.  Three examples will demonstrate the usefulness of this rule. 
During the Orlando trial of Theodore Robert Bundy, it was essential to place the time of the victim’s death at or near the time that Bundy had been in Lake City.  The body had lain in the woods for approximately two months, and it was partially mummified, partially skeletonized.  The surest indication of time of death came from maggot activity.  A certain number of generations of maggots could be shown to have lived on the body.  Maggots do not reproduce below a certain temperature.  The medical examiner did a study of temperatures from various weather stations in the area and did a chart showing the daily temperatures between the victim’s disappearance and her recovery.  The number of days at which the temperature was conducive to maggot activity coincided with the number of generations of maggots found on the body.  The victim died shortly after her disappearance and at a time close to when Bundy was in Lake City.  It would have taken a full day to put into evidence all the predicate information necessary to get the chart into evidence.  Rule 1006 (Fla.Stat. § 90.956) would have saved the day had the Bundy case not predated Florida’s adoption of the Federal Rules of Evidence.  Luckily the case survived the prosecution’s inability to offer the medical examiner’s chart as summary evidence.

Another area where summary evidence can prove useful is in the proving up of motive and of the pecuniary gain aggravating circumstance.  Financial difficulties on the part of the defendant oftentimes serve as a motive for crime.  Those difficulties could be demonstrated by the introduction of several banker’s boxes of mind-numbingly boring financial records; or they could be demonstrated by the testimony of a CPA who has done a financial analysis and who can summarize the defendant’s plight. 
Murders are oftentimes the byproduct of drug smuggling conspiracies.  Drug smuggling conspiracies generate voluminous telephone calls.  Criminal intelligence analysts can chart and graph those phone calls to demonstrate the patterns of calls that lead up to and follow individual smuggles, and also the spates of phone calls that surround crises such as the arrest of a mule or the murder of an officer.
Back in the late 1940's, the Air Force conducted a series tests, known as Project MX981, to determine the effects of extreme acceleration and deceleration on the human body.  At a press conference on the project, Colonel John Paul Stapp was asked how they had been able to manage such a dangerous project without someone suffering serious injuries.  Stapp attributed their safety record to an engineer on the project named Edward Murphy. Stapp said Murphy had a law that they payed strict attention to.  Of course, the modern formulation of that law is “if anything can go wrong, it will.”  Stapp said that with that law in mind, they carefully considered all possibilities before doing a test and did their best to provide against them.

Anyone who has ever tried a criminal case knows full well that Murphy’s Law reigns supreme in the courtroom.  We can deal with this fact of life in one of two ways.  We can stomp blindly into the courtroom and blunder into every available pitfall, dealing with each new disaster on an ad hoc and catch-as-catch-can basis.  Or we can carefully consider all the possibilities before going to trial and do our best to provide against them.  The motion in limine provides an excellent tool for providing against disaster.  Oftentimes we confront opposing counsel who combine an expansive definition of relevance with a resolute determination to sneak questionable evidence in while we’re inattentive or to wear down the trial judge into admission of the evidence by dint of repeated proffers.  Settling the propriety of such matters pretrial by the mechanism of a motion in limine can help the trial to flow much more smoothly.   If opposing counsel is known to be particularly obtuse, the motions in limine will have to address even the most basic issues.  If opposing counsel is known to have a realistic grasp of the rules of evidence and an inclination to exercise that grasp, then motions in limine can be reserved for truly controversial issues.  The subject matter of such motions is limited only by the imagination of the advocate, and the more such issues can be settled pretrial, the more smoothly the trial will run.
Motions in limine are not, however, motions to suppress.  If the motion addresses a cut-and-dried issue (e.g., Motion to Prevent Impeachment of State’s Witness with DUI Conviction), then the ruling will most likely be final.  If, however, the motion addresses an issue which depends upon the interpretation of other evidence, (e.g., Motion to Prevent Introduction of Purportedly Exculpatory Other Act Evidence), then a pretrial ruling is of necessity only preliminary and subject to change based upon how the evidence unfolds at trial.  Florida courts call this the “Shifting Sands Doctrine.” 
            A trial court's pre-trial ruling on a motion in limine is tentative because the shifting sands of the trial in progress may cause a trial judge to rethink an earlier evidentiary ruling based on a maturing understanding of the case. McCallister v. State, 779 So.2d 615, 615-616 (Fla. 5th DCA 2001).  The shifting sands of the trial in progress may cause a judge to rethink an earlier evidentiary ruling based on a maturing understanding of the case. Harmon v. State, 894 So.2d, 697 n.1 (Fla. 5th DCA 2003); Donley v. State, 694 So.2d 149, 150 (Fla. 4th DCA 1997).
 

Other states have similar rules.  E.g. Conagra v. Strother, 68 Ark.App. 120, 5 SW 3d 69 (Ct.App.Div. IV 1999); Nolen v. State, 278 Ark. 17, 643 SW 2d 257 (1982).

The prosecution need not confine itself to simple reaction during the pretrial phase of a capital case, but may actually be proactive.  The extent to which the prosecution can become proactive is limited only by the imagination and initiative of the individual prosecutor.  The extent to which the prosecution becomes proactive can have a profound effect on the course of the trial itself, and can contribute to smoother sailing during the appellate and post-conviction processes. In the normal case, the prosecutor thinks of the job as being done when the verdict is rendered and sentence pronounced.  In a capital case, the job is just beginning.  How firm a foundation is laid in the pretrial and trial phases determines whether the ultimate objective is finally achieved.