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.
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