MOTION TO EXCLUDE

Before a jury trial is held, the attorneys have the chance to make all kinds of requests or motions.  The focus of defense motions is to limit the information that the jury will be allowed to consider.  Anything obtained illegally or unduly prejudicial are first priority for exclusion, but there can be a long list of other items as well.  The facts of the case along with and a myriad of legal theories and constitutional rights combine to make these arguments for exclusion.

The following are just a few of the defense motions made in a fairly straightforward drug “Possession With Intent” to deliver, affectionately referred to as a “PeeWee” by the attorneys, because of the PWI acronym.

Any statements made by the detainee before being read his rights should be excluded.  Any recorded statements need to follow a strict Privacy Act consent rule.  Specifically, the arrested person must be informed on the recording that he is being recorded.  The police must state the start time of recording.  The police must begin by giving the suspect his constitutional rights warnings.  And there must be a statement of end time.  If any of this is done incorrectly, all or part of the recording should be found inadmissible.

Defense attorneys routinely ask that the defendant NOT be referred to as the defendant or the suspect, and that any victims NOT be referred to as victims.  This may seem silly on its face.  But the idea is that repeating such terms will be unduly prejudicial, influencing the jury in leaping to conclusions.  It is the state’s job to convince the jury that there is a victim, or that a crime has been committed.  Thus, it is common for judges to rule that the prosecutor must call all parties by their name.

In street-level drug cases, one person typically carries the product and another makes the verbal offers.  Once a deal is reached, and it looks good to go, the speaker will tell the carrier to pull out a package.  This can save some trouble along the way, if one is caught offering, for example, “black and white” (black tar heroin and crack cocaine) by an undercover police.  The carrier glides away, and the person speaking to the cop claims he was just joking around, and when frisked, he doesn’t even have any drugs, so how could he be selling?

If both parties are caught together, there remains the issue of whether they should be tried together, or each have their own trial.  There is an argument that trying them together would make them both seem guilty of any crimes their co-defendant committed, and thus make them seem more likely to have committed their share of the crimes.  Guilt by association.  Unless there is strong enough evidence to charge the case as conspiracy, the court may agree to sever the two trials.

Without a conspiracy theory, there is another defense motion to not admit anything that was not found on the person of the defendant himself – whatever the co-defendant was carrying, the argument goes, is not this defendant’s problem.  No photos should be shown – nothing in the police report should refer to it, etc.  What the co-defendant possessed should be considered irrelevant, unless the state finds a way to link the two cases more closely and show they were working as a team.  Unless and until that happens, the state must specifically prove the crime as charged, and is not allowed to beef it up with surrounding circumstances, what someone else had in his pocket, or other prejudicial persuasions.

To cut it even finer, let’s say one defendant was accused of offering, as above, crack and heroin, but was only found with a tiny bag of crack.  If the defense attorney prevails on the issue of separating out the two defendant trials, she can further posit that this defendant’s two charges (for crack and heroin) should be separated, because the defendant has an interest in testifying as to not having heroin on his person, but he will NOT wish to incriminate himself about the crack found on his person.  He has the right to testify – or not testify – and these come into conflict here.

As is often the case, this defendant was previously ordered to Stay Out of Drug Area, one of the so-called SODA zones.   The argument here is that calling the area where the defendant was found a SODA zone in front of the jury is prejudicial.  The fact that some people, including this defendant, may have been ordered to stay out of this zone, is not relevant as to whether he committed this new crime.  Again, creating suspicion with facts that are not relevant to the actual charge is considered unduly prejudicial.

A standard motion in all cases asks that witnesses testify based only on their own independent recollections and knowledge.  So there is often an order that the attorneys may not share any information with witnesses, and witnesses must be excluded from the courtroom, and not allowed to “check their stories” among themselves.  The fear is that witnesses may be influenced or contaminated from exposure to other witnesses’ beliefs and versions.  The temptation is strong to try and create one coherent story to the jury.  So lawyers will be specifically ordered not to tell their witnesses what other witnesses have said or testified.

Prior bad acts, criminal record, and such are also excluded as prejudicial.  The defendant has the right to be judged based solely on the evidence the state has gathered and can provide in the case at hand.  Repeat offenders cannot be convicted based on the jury deciding he is a dirty rat who should have been locked up a long time ago.  Which is another way of saying that allowing such prior acts is likely to be prejudicial in the eyes of the jury.

Defense attorneys will request that the prosecutor not be allowed to use everyday decision-making analogies as a way to explain what “beyond a reasonable doubt” means as to how the jury will decide on guilt.  Defense attorneys claim that using an everyday decision like crossing a crosswalk to explain what the “beyond a reasonable doubt” standard means “trivializes the gravity of the standard and the jury’s role.”  It could make the jury falsely believe that the state’s burden of proof is easily met, whereas it is an extremely high standard.

Attorneys in drug cases ask that police not be allowed to “speculate” as to whether a substance they found or observed was in fact the drug as charged.  No one can testify along the lines of “it must have been heroin, I just know it”.  The state needs to bring in expert witnesses and forensic evidence along with showing the chain of custody of the drugs from suspect’s possession all the way to the drug lab and testing process.  The officer may of course testify as to observations, but not jump to a conclusion.

If enough of the evidence ends up being excluded, usually due to incorrect procedures, there may not be much of a case.  One of the charges may be dropped, the charges may be reduced, or the case may head to settlement.  It may even be dismissed.  This is where defense lawyers claim that they are upholding fairness and due process by making sure that police investigations must be carried out legally in order to result in a conviction.

The decisions on excluding evidence are not always easy.  Constantly redefining where our rights begin and end is a necessary, if painful, process, that is litigated daily in courtrooms across the country.  Some of it becomes such a fine line as to approach hair splitting.  I am continually impressed by how seriously the judges take their obligation to make sure that each trial is fair and impartial, and by the thoughtful arguments made on both sides.  Because in the end, the right to a fair trial is not just a technicality.  And everyone in the courtroom, ideally, is there to uphold the law.