Request for Subpoena Duces Tecum - Art. 24.

02 CCP

sample standard pretrial and trial defense motions

If you want something to happen or you don't want something to happen within the procedural
framework of the case, you're going to have to ask the court to issue an order. You make the
request for a trial court order by means of a motion. The trial judge will handle housekeeping
matters sua sponte (on its own motion without any request from a party), but for the most part you
can't count on the trial court to control the opposition without a formal request, i.e., motion, from
you. Some motions will suffice on their own face to support the issuance of a dispositive order by
the court. Other motions will require supporting evidence, e.g., an affidavit. In some instances,
particularly those involving disputed facts, it will be necessary to adduce oral testimony at a
hearing on the motion. Here's a list of some federal cases holding criminal defense trial counsel
ineffective, under the Sixth Amendment right to counsel, for failure to file certain motions.

What follows is a smorgasbord of titles to plus 150 standard motions that might be filed by
defenders. Although most of these motions could be filed in any jurisdiction, some of them have a
basis in the law of my home state, Texas. Accordingly, I have indicated the statutory or rule based
source of those motions (CCP =Texas Code of Criminal Procedure; TPC = Texas Penal Code; TRE =
Texas Rules of Evidence) For more information about drafting your own motions (1 - tips from a
civil lawyer) and a couple of hundred other standard motions , see Pretrial and Trial Motions in
Criminal Cases - A Trial Lawyer's Guide: The USSC cases and state cases cited after some of the
motion titles may give you a head start if you are researching and/or drafting your own motions
rather than using boilerplates or fill-in-the-blanks templates that you don't understand and that
were written or ripped-off by a pointy-headed legal software seller. If you are going to competently
defend persons accused of crime, you'll have to keep up with breaking cases.

Note: To monitor the U. S. Supreme Court's slip opinions of cutting edge cases,
e.g., Crawford, Blakely, etc., I use these free sites: Findlaw Supreme Court Cases, Supreme Court
Slip Opinion, Cornell, Findlaw's USSC briefs, ABA's briefs, This is a fee based subscription service.
Use these sites to find Federal Codes, (1), (2),State Cases. Lexisone will allow you free access to
USSC cases and state cases for the previous five years.VersusLaw provides a low-cost alternative
to Westlaw and Lexis. You may also be able to find useful information regarding cases pending in
the USSC in this ABA preview site. One of the best sites to help you stay on top of cases pending in
and recently decided by the United States Supreme court is "On the Docket" sponsored by
the Medill School of Journalism at Northwestern University. For those with a historical bent, you
may find it interesting to read the bios of justices who have staffed the Supreme Court.
The SCOTUS andHowAppealing blawgs deal respectively with USSC and appellate court going-ons.
If you are brief-writing theLegal-Writing blawg is a useful resource.This super blawg aggregates a
large number of blawgs covering activity in the various federal circuits. Texas criminal lawyers
must be aware of the Texas Penal Code, Texas Code of Criminal Procedure, Texas Rules of
Evidence, Texas Rules of Appellate Procedure, Texas Court Reporters Rules, and the the Texas
Uniform Court Reporters Manual as well as the Texas Court of Criminal Appeals mail service,
the Texas AG Google search for opinions, the Texas Legislature. , the Texas Legislative Reference
Library. Here's an Internet research tutorial, a research guide, a free email bulletin, a
free newsletter. One of the best ways of keeping up with changes in criminal procedure at the
federal level is to read the Georgetown Law Journal - Annual Review of Criminal Procedure; it'll cost
you about $65 per annum; it's a +1,000 page summary of recent cases in the 12 Federal Circuit
Courts and the USSC.

Here's a potpourri of titles to motions that you may want to adopt, adapt, or compose:

Motion for Court Reporter to Make a Full and Complete Record of All Hearings or Court
Proceedings - (See Rule 13, Texas Rules of Appellate Procedure; note that Rule 13.(a) now
requires the court reporter to make a record of the voir dire and final argument, unless excused by
agreement of the parties.)
Motion to Preserve Evidence Otherwise Subject to Destruction, Corruption, or
Contamination
Motion to Use Best Practices in Lineups and Eyewitness Interviews (1)
Motion Pursuant to Article 36 of the Vienna Convention Re Consular Relations (VCCR)
for Access to and Communication with Consular Officials by the Defendant as a Foreign
National Detained in the United States of America (1 - 60 pages of information re VCCR) This
motion is based on international law, Articles 5 and 36 [more specifically Article 36 (1)(b)] of the
VCCR, that states that foreign nationals held in custody must be allowed to contact their embassy),
(2)
Motion to Restrict Publicity (Gag Order, "Cut Their Tongue Out" Motion) - Irvin v. Dowd, 366 U.S.
717 (1961); Murphy v. Florida, 421 U.S. 794 (1975); Patton v. Yount, 467 U.S. 1025 (1984); Mu'Min
v. Virginia, 500 U.S. 415 (1991); Sheppard v. Maxwell, 384 U.S. 333 (1966); Estes v. Texas, 381
U.S. 532 (1965); Nebraska Press Association v. Stuart, 427 U.S. 539 (1976); Gannett Company Inc,
v.DePasquale, 443 U.S. 368 (1979); Richmond Newspapers Inc v. Virginia, 448 U.S. 555
(1980);Globe Newspaper Co. v. Superior Court, 47 U.S. 596 (1982); Chandler v. Florida, 449 U.S.
560 (1981); Press Enterprise Co. v. Superior Court, , 478 U.S. 1 (1986); Gentile v. State Bar of
Nevada, 501 U.S. 1030 (1991); El Vorcero de Puerto Rico v. Puerto Rico, 508 U.S. 147
(1993); Skilling v. United States, __U.S. __ (2010) holding that pretrial publicity and community
prejudice did not prevent this Enron CEO white-collar criminal from getting a fair trial. CCJA Ethics;
ABA Model Rules of Professional Conduct, Rules 3.6, 3.8; ABA Standards - Fair Trial & Free
Press (1992); ABAStandards for Criminal Justice - Prosecution Function 3-1.4 - Public Statements;
(1), (2 - 54 page article on the subject of pretrial publicity -2004) [Note: Keep track of online
mention of your high publicity case with Google Alert.] [Note: The USSC cases lag behind changes
in communicastion. Today, blogs or blawgs constitute primary sources of pretrial and trial
information regarding high-profile cases; controlling pretrial publicity in the organized media, e.g.,
press and TV, will be much easier than controlling the thousands of would be pundits on the
Internet.] [Suggestion: If you do issue a defense statement, keep it brief, e.g., "Mr. Smith is not
guilty.(or By his plea of not guilty, Mr. Smith has started the process of justice.) We will ask for a
trial. I am going to vigorously, enthusiastically, and successfully defend him against this charge."]

Motion to Prevent Ex Parte Contact with Judge (or Jurors) - See CCJA Ethics; ABA Model
Rules of Professional Conduct, Rule 3.5; ABA Standards - Special Functions of the Trial
Judge (1999).
Nonresident Attorney's Motion to Appear Pro Hac Vice ["Pro Hac Vice" is Latin for "for this
occasion or particular purpose" and is used here when a lawyer who has not been admitted to
practice in a particular jurisdiction seeks temporary admission there to try one case.] This web
page provides nonresident lawyers who seek to practice in a Texas court with useful information
regarding Pro Hac Vice practice in Texas. Here is broader info on multijurisdictional practice.
Motion to Prevent Ex Parte Communication with the Court by the Prosecution Except as
Permitted by Law or Court Order - See Rule 3.5(b) ABA Model Rules of Professional
Conduct. See also Canon 3B(7) of the ABA Model Code of Judicial Conduct. Check your jurisdiction's
rules at CCJAEthics.
Motion to Withdraw as Counsel
Motion to Withdraw as Counsel Due to Conflict of Interests with the Defendant and
Objection to Being Forced to Represent the Defendant in Light of Such
Conflict - Holloway v. Arkansas, 435 U.S. 475 (1978) holds that when a defense lawyer objects to
representing a client with conflicting interests, the trial court is required to make an inquiry as to
whether there is a conflict of interest and hold a hearing if necessary. Failure of the trial court to do
so results in an automatic reversal of any subsequent conviction, prejudice being presumed. [Note:
When you file this motion be certain to state that the conflict of interest may create a deprivation
of the defendant's Sixth Amendment right to effective assistance of counsel. If you don't object to
the conflict of interest representation and your client is convicted, in his postconviction effort to
have the conviction set aside for denial of effective assistance of counsel on the ground of conflict
of interest, your client will have the very heavy burden of establishing that there was an actual
conflict of interest that adversely affected counsel's representation. See Culyer v. Sullivan, 446 US
335 (1980); Mickens v. Taylor, 535 U.S. 162 (2002) making clear that if there is no trial court
objection to the representation on ground of conflict of interest, postconviction relief is available
only when there is proof of an actual conflict of interest that adversely affected the representation.]
[Note to Defendants: If you are being represented by a lawyer whom you think has a potential or
actual conflict of interest in representing you and the lawyer refuses to withdraw or notify the trial
judge of the conflict, you should strongly consider (1) filing a written objection to the
representation on the ground of conflict of interest between you and the lawyer; and (2) asking the
trial judge, in the same written objection, to conduct an inquiry into the matter of the lawyer's
potential or actual conflict if interest. To seal the deal, if you are indigent, you might also file a
motion with the court asking the trial judge to provide you with a different lawyer.]
Motion for a Hearing on Defendant's Competence to Waive Counsel - Westbrook v. Arizona,
384 U.S .150 (1966); Godinez v. Moran, 509 U.S. 389 (1993); Indiana v. Edwards, 554 U.S. __, 128
S.Ct. 2379 (2008) held that the United States Constitution permits states to insist upon
representation by counsel for those who are competent enough to stand trial but who still suffer
from severe mental illness to the point where they are not competent to conduct trial proceedings
by themselves.
Defendant's Motion to Proceed Pro Se at Trial - Faretta v. California, 422 U.S. 806
(1975);Martinez v. Court of Appeal of California, Fourth Appellate District, 528 U.S. 152 (2000).
(Farettadoes not apply to appeal.) In support of this motion, consult Hashimoto, Defending the
Right of Self-Representation, 85 N.C.L.Rev. 423 (2007).
Defendant's Request for Standby Counsel - McKaskle v. Wiggins ,465 U.S. 168 (1984).
Motion by Court-Appointed Counsel that the Court Determine Whether the Defendant Who Wishes
to Proceed Pro Se Is Making This Decision Knowingly and Voluntarily - Faretta v. California, 422
U.S. 806 (1975). (1)
Motion to Substitute Counsel
Motion to Set Bond - Stack v. Boyle, 342 U.S. 1 (1951); Schilb v. Kuebel, 404 U.S.
357(1971);Harris v. United States , 404 U.S. 1232 (1971); United States v. Salerno, 481 U.S. 739
(1987). See ABA Standards - Pretrial Release (2002).
Motion to Reduce Bond - Schilb v. Kuebel, 404 US 357 (1971).
Motion to Modify Conditions of Bond
Motion for a Preliminary Hearing [Note: Texas is the only state in the nation that calls the
preliminary hearing an "Examining Trial"]
Motion for a Transcription of Evidence Presented at Preliminary Hearing
Challenge to the Array of Grand Jurors - Articles 19.27, 19.30 CCP (Texas Code of Criminal
Procedure).
Motion to Quash Grand Jury Subpoena Dueces Tecum - United States v. Dionisio, 410 U.S. 1
(1973); United States v. Calandra, 414 U.S. 338 (1974); United States v. R. Enterprises, Inc., 498
U.S. 292 (1991); Branzburg v. Hayes, 408 U.S. 665 (1972); Blair v. United States, 250 U.S. 273
(1919).
Challenge to a Particular Grand Juror - Articles 19.27, 19.31 CCP.
Motion to Require the Grand Jury to Record the Information Presented to It by the
Prosecutor and Witnesses
Motion to Preserve Grand Jury Testimony of Witnesses Who Testified or Otherwise
Provided Evidence
Motion to Adopt Pretrial Motions of Co-Defendant
Motion to Quash (Set Aside) Indictment- Exception to the Indictment - Articles 21.02,
21.21, 27.03, 27.08, 27.09, 27.11, 27.12, 28.01 CCP. Here (1) is a 150 page memorandum in
support of a motion to dismiss a federal indictment and for a bill of particulars.
Motion to Prevent Use of Prior Conviction for Enhancement - (1 - federal)
Motion to Require the Prosecution to List the Names of Witnesses Upon Whose
Testimony the Indictment was Found - Art. 20.20 CCP.
Motion to Withdraw Plea of Guilty - A.B.A. Standards - Guilty Plea (1999).
Motion to Require Specific Performance of Binding Plea Bargain by the Government
(Add: ,and If the Court Does Not Require the Prosecution to Honor the Promises It
Made, That the Defendant Be Allowed to Withdraw His/Her Plea - Santobello v. New
York, 404 U.S. 257 (1971);Brady v. United States, 397 U.S. 742 (1970); Mabry v. Johnson, 467 U.S.
504 (1984). See federal cases involving withdrawal of a plea, see Rule 11(d) Fed. R. Crim.
Proc : Puckett v. United States,__U.S. __, 129 S.Ct. 1423 (2009).
Motion to Adopt Motions and Pleading Filed by Defense in the Previous Trial of This
Case
Defendant's Special Plea in Bar Based on Former Acquittal, Former Conviction, Improper
Termination, or Collateral Estoppel - Art. 27.05 CCP
Defendant's Plea of Double Jeopardy (or Collateral Estoppel) - Benton v. Maryland, 395 US 784
(1969); Blockburger v. United States, 284 US 299 (1932); Ashe v. Swenson, 397 U.S. 436
(1970);Yeager v. United States, __U.S.__, 129 U.S. 2360 (2009).
Defendant's Plea of Double Jeopardy to Bar Retrial After Defendant Successfully Moved
for Mistrial When the Prosecutor Engaged in Conduct That Was Intended to Provoke the
Defendant Into Moving for A Mistrial, - Oregon v. Kennedy, 456 U.S. 667 (1982); on this front,
Texas lawyers got some bad news from the ex-prosecutor dominated Texas Court of Criminal
Appeals in Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007).
Motion to Set Aside Indictment (or Information or Complaint) for Denial of Speedy Trial -
Klopfer v. North Carolina, 386 U.S. 213 (1967); Barker v. Wingo, 407 U.S. 514 (1972); Strunk v.
United States, 412 U.S. 434 (1973); United States v. Taylor, 487 U.S. 326 (1988); Doggett v.
United States, 505 U.S. 647 (1992); Vermont v. Brillon, __ U.S.__, 129 S.Ct. 1283 (2009); Note that
there is federal Speedy Trial Act of 1974, 18 USC 3161 et seq, see Zedner v. United States, 547
U.S. 489 (2006); Bloate v. United States, __ U.S. __ (2010) holding that delay resulting from the
defendant's request for additional time to prepare pretrial motions is not automatically excludable
from the 70-day limit under the federal speedy trial act. ABA Standards - Speedy Trial (2004).
Motion for Discovery - (1 , 2 & 3 federal case law and Rule 16 Fed. R. Crim Proc.); Art. 39.14
CCP. [Re expert opinion under Articles 7 of TRE and FRE - Regarding opposing experts request that
the opposition provide you with the business addresses and phone numbers of the opposition's
experts, copies of all written reports and bench and field notes made by their experts or , if no
reports were made, a summary of their experts' anticipated testimony; also, request that the
opposition provide you with its expert witnesses' qualifications and opinions as well as the factual
data or underlying information upon which the experts' opinion will be based. If you plan to
challenge the admissibility of the other side's expert testimony, be ready to file a written motion to
exclude.] Defenders and prosecutors must take time to read Opinion 09-454 (July 8, 2009) of
the ABA Standing Committee on Ethics and Professional Responsibility setting forth a broader
ethical requirement of compulsory prosecutorial disclosure than is required by the constitutional
due process Brady-type cases listed below. See also ABA Standards - Criminal Discovery (1994);
the discussion of formal and informal discovery on CCJA's Pretrial page.
Motion that the Prosecution Be Required to Reveal Material that Would in Its Nature Be
Exculpatory of Guilt and/or Mitigating of Punishment and that the Duty to Reveal Such
Material Be a Continuing One Throughout the Case - (1) Brady v. Maryland, 373 U.S. 83
(1963), Giles v. Maryland, 386 U.S. 66 (1967); Giglio v. United States, 405 U.S. 150 (1972); United
States v. Agurs, 427 U.S. 97 (1976); United States v. Bagley, 473 U.S. 667 (1985); Kyles v.
Whitley, 514 U.S. 419 (1995); Strickler v. Greene, 527 U.S. 263 (1999); United States v. Ruiz, 536
U.S. 622 (2002). See alsoPennsylvania v. Ritchie,480 U.S. 39 (1987); United States v. Valenzuela-
Bernal, 458 U.S. 858 (1982); Arizona v. Youngblood, 488 U.S. 51 (1988); ABA Model Rules of
Professional Conduct, Rules 3.4.(a) & (d), 3.8 (d). Defenders and prosecutors must take time to
read Opinion 09-454 (July 8, 2009) of the ABA Standing Committee on Ethics and Professional
Responsibility setting forth a broader ethical requirement of compulsory prosecutorial disclosure
than is required by the constitutional due process cases listed above. See also the discussion on
the CCJA Ethics page. Defenders should attach a copy of Opinion 09-454 to the Motion for
Disclosure and should demand that disclosure be timely so that the information or potential
evidence can be used meaningfully in defending the case. Some jurisdictions (1) utilize letter
requests for discovery before resorting to more formal motion practice. See also the discussion of
pretrial discovery in CCJA's Pretrial.
Motion to Compel the Prosecution to Take Steps to Learn of Any Evidence Favorable to
the Defendant That Is Known to Other Persons Acting for the Government Team, e.g.,
the Police
Motion for Discovery of Eyewitness Evidence , See Eyewitness Misidentification.
Motion for a List of Prosecution Witnesses
Motion for Disclosure of Grand Jury Testimony of Witnesses for Which There Is a
Particularized Need
Motion for Court Order for Access to Allow Defense Inspection of Scene of Alleged
Offense
Motion to Physically Inspect, Examine, and Forensically Analyze Tangible Items of
Potential Evidence
Motion for Discovery of Software Source Code to Access Program that Runs Breath
Alcohol Measuring Instrument (e.g. Intoxilyzer 5000, DataMaster, etc.) Utilized by
Government to Analyze Breath Sample in DUI (DWI) Case
Motion to Require the Government to Reveal Any Agreement Between Any Agent or
Agency of the Government and Any Government Witness - Giglio v. United States, 405
U.S.150 (1972).
Motion to Disclose the Identity of the Government's Informant(s) - Roviaro v. United
States, 353 U.S. 53 (1957).
Motion to Preclude Creation of Informant Testimony (1)
Motion to Require the Government to Produce the Government's Informant for Trial
Motion to Disclose the Present Whereabouts of the Government's Informant for
Purposes of a Defense Subpoena
Motion to Observe Searches for Trace Evidence Conducted by Law Enforcement Agents
and Forensic Criminalists on Evidence Seized and Impounded by Agents of the
Prosecution SeeExpert Testimony
Motion to Have Defense Expert Present to Observe and Record Scientific Testing
Conducted by the Prosecution's Forensic Evidence Agents See Expert Testimony
Motion for Quantitative Weight Analysis of Alleged Contraband (Controlled Substance
or Dangerous Drug) When the Alleged Contraband Is in a Dry Condition - If weight of a
controlled substance or other alleged item of contraband is of importance to the sanction that may
be imposed, ask that the sample of alleged contraband be weighed after removal of residual water,
i.e., being dried with a "desiccator," a machine common to every crime laboratory. The point is that
your client is charged and will be punished based on possession, sale, delivery, etc., of the
contraband substance, not water. Also, include a request that the sample be weighed only on a
scale that has been properly calibrated for balance accuracy.
Motion for a Physical Medical Examination of the Complaining Witness
Motion for Psychological/Psychiatric Examination
Motion for Preparation of Transcript from Tape Recordings and for Pretrial Conference
to Agree Upon a Stipulation as to Accuracy of Transcript of the Tape Recording and
Admissibility of Transcript at Trial as a Listening Aid for the Jury
Request for Subpoena Duces Tecum - Art. 24.02 CCP
Request for Notice of Prosecution's Intent to Offer Proof of Uncharged Misconduct
Under the Auspices of Rule 404(b) TRE
Request to the Prosecution for Notice of Prosecution's Intent to Impeach Witness with
Proof of Prior Conviction(s) Under Rule 609 TRE
Request to the Prosecution for Notice of Prosecution's Intent to Introduce Evidence
Under Article 37.07 CCP - Including Prior Criminal Record of the Defendant & Character
Evidence Regarding the Defendant & Evidence of Defendant's Uncharged Misconduct &
Prior Convictions for Felonies or Misdemeanors Punishable by Jail Time
Motion to Produce Journalist's Reports - Branzburg v. Hayes , 408 U.S. 665 (1972), refused to
recognize a reporter's privilege grounded in the First Amendment; Branzburg unfolded in the
context of a reporter's refusal to answer grand jury questions. See In re: Grand Jury Subpoena,
Judith Miller, 397 F.3d 964 (D.C. Cir. 2005). [Note: Ms. Miller was the New York times reporter who
played footsie with the Bush White House re leaks and declined to give evidence before a grand
jury in the Valerie Plame matter.] Be aware that various state statutes (Check yours.) and some
federal circuits have recognized a reporter's privilege of some scope. See United States v.
LaRouche Campaign, 841 F.2d 1176 (1st Cir 1988), von Bulow v. von Bulow, 811 F.2d 136 (2nd Cir
1987), In re Madden, 151 F.3d 125 (3rd Cir. 1998), In re Shain, 978 F.2d 850 (4th Cir. 1992), United
States v. Smith, 135 F.3d 963 (5th Cir. 1998),Shoen v. Shoen, 5 F.3d 1289 (9th Cir. 1993), United
States v. Caporale, 806 F.2d 1487 (11th Cir. 1986). See also McKevitt v. Pallasch, 339 F.3d 530
(7th Cir. 2003).
Motion for Disclosure of Intercepted Wire, Oral, or Electronic Communication - Art. 18.20
CCP. See A.B.A. Standards - Electronic Surveillance: Part A - Electronic Surveillance of Private
Communications & Part B - Technologically-Assisted Physical Surveillance (2001); Electronic
Surveillance Laws; USC/CFR;
Motion for Deposition of Witnesses by the Defense - Articles 39.02, 39.06 (written
interrogatories) CCP.
Motion to Take Testimony of Child Complainant
Motion to Record Testimony of Child Complainant
Motion to Require Live Testimony of Child Complainant - Pointer v. Texas, 380 U.S. 400
(1965); Coy v. Iowa, 487 U.S. 1012 (1988); but see Maryland v. Craig, 497 U.S. 836 (1990). See
alsoCrawford v. Washington, 541 U.S. 36 (2004) discussed below.
Motion to Permit Entry Onto Property for Purposes of Inspection
Motion for Severance of Offenses and Relief from Unfairly Prejudicial Joinder - Section
3.02, 3.04 TPC; Rule 14 F. R. Crim. Proc.; ABA Standards - Joinder & Severance (1980).
Motion for Severance of Parties (Defendants) and Relief from Unfairly Prejudicial
Joinder -Article 36.09 CCP; Rule 14 F. R. Crim. Proc.; (Sample Federal Motion - 11 pages)
Motion for an Translator (Interpreter)
Due Process Motion for Investigative Funds to Obtain the Service of a Competent
Expert in the Field of (state the relevant field of expertise) to Assist the Indigent
Defendant and Defense Counsel in Preparing and Presenting the Defense of (state the
relevant defense) - Ake v.Oklahoma, 470 U.S. 68 (1985) (1)(2)(3) [Note: Ake doesn't mean much
in some states, e.g. Georgia, where you might occasionally run into a trial court judge who is
apathetic to basic concepts of fairness.] See Expert Testimony See also ABA Standard for Criminal
Justice: The Defense Function, Standard 4-4.1.
Motion for Reimbursement of Investigative Expenses
Motion to Disqualify (Recuse) Judge - Article 30.01 CCP; Ward v. Mayor of Monroeville, 409 US
57 (1972); Aetna Life Insurance Company v. Lavoie, 475 US 813 (1986); Chapman v. California, 386
U.S. 18 (1967); Tumey v. Ohio, 273 U.S. 510 (1927). Here's a lengthy explanation of the law
surrounding recusal of a judge in Texas; ABA Standards - Special Function of the Trial
Judge (1999).
Motion for Voluntary Recusal (Removal) as Judge
Motion to Disqualify the Prosecutor (or Defender) On the Ground that S/he Is a
Necessary Witness - ABA Model Rule of Professional Conduct 3.7 indicates that a lawyer shall
not act as an advocate at a trial in which s/he is likely to be a necessary witness unless the
testimony relates to an uncontested issue, the testimony relates to the value of the legal services
in the case or the disqualification of the lawyer would work a substantial hardship on the client.
Motion to Recuse the Prosecutor on Ethical Grounds - A number of grounds for alleging
professional misconduct of a prosecutor can be found at these sites (1 - opinions), (2 - bibliography
of articles re ethics of prosecutors) See CCJA Ethics.
Motion for Competency Examination to Determine Present Fitness of Accused to Stand
Trial -ABA Standards - Mental Health (1988).
Motion for Hearing to Determine Accused's Present Competency to Stand Trial - Pate v.
Robinson, 383 US 375 (1966); Drope v. Missouri, 420 U.S. 162 (1975).
Motion to Prevent Compelled Forced Medication (Use of Drugs) Upon the Defendant at
His Trial - Riggins v. Nevada, 504 U.S. 127 (1992). But see Sell v. United States, 539 U.S. 116
(2003).
Motion for Defense Counsel to Be Notified a Reasonable Time Prior to Any Mental
Examination of Accused by State or Court-Appointed Experts
Motion for Examination of the Accused Re Insanity (Mental Condition and
Responsibility) at Time of Alleged Offense
Notice of Defense Intent to Rely on Insanity Defense
Motion to Adopt Objections of Co-Defendant at Pretrial Hearing
Motion for Change of Venue - Article 31.03 CCP; See also Rideau v. Louisiana, 373 U.S. 723
(1963); Sheppard v. Maxwell, 384 U.S. 333 (1966); Groppi v. Wisconsin, 400 U.S. 505
(1971);Nebraska Press Association v. Stuart, 427 U.S. 539 (1976); Patton v. Yount, 467 U.S. 1025.
(1984);Skilling v. United States, __ U.S. __ (2010); ABA Standards - Fair Trial & Free
Press (1992). Good little article. [Tip: Keep track of any online mention of your case with Google
Alerts; these could be useful evidence at a hearing on change of venue.]
Motion to Prevent Prosecution from Referring to the Complainant as "the Victim"
Motion to Prevent Prosecutorial Reference to Alleged Previous Convictions Alleged for
Enhancement Prior to Verdict of Guilty on Primary Offense
Motion to Prevent Jurors from Being Informed of Nature of Prior Convictions Alleged for
Enhancement in Order to Prevent Unfair Prejudice
Motion to Prevent Receipt of Evidence from the Prosecution Relating Hearsay
Testimony of Unavailable Witness' on the Ground that the Defendant Has Not Been
Afforded the Opportunity to Confront the Hearsay Declarant Regarding the Out-of-Court
Statement as Required by the Sixth Amendment Confrontation Clause - Crawford
v. Washington, 541 U.S. 36 (2004) holding that out-of-court hearsay testimonial statements by
declarants are barred under the Confrontation Clause of the Sixth Amendment from admission
against the defendant at his/her criminal trial unless: (1) the declarant appears as a witness in the
trial or (2) the declarant is unavailable and the defendant has had prior opportunity to cross-
examine the declarant regarding the out-of-court statement, irrespective of whether such out-of-
court statement is deemed reliable by the trial court. [Read the Crawford decision and the briefs. In
defining "testimonial" the U.S.S.C. said, "Whatever else the term covers, it applies at a minimum to
prior testimony at a preliminary hearing, before a grand jury, or at a former trial, and to police
interrogations. " See United States v. Delgado, 401 F.3d 290 (5th Cir. 2005). The Crawfordruling
does affect the admissibility of hearsay statements from grand jury testimony, hearsay testimony
at the preliminary hearing or other hearings such as a suppression hearing or a hearing to set or
reduce bail, hearsay testimony from other trials, hearsay statements in an affidavit, hearsay
statements made by an accomplice to the police, See United States v. Arbolez, 450 F.3d 1283
(11th Cir. 2006), hearsay statements by a co-conspirator at the co-conspirator's sentencing
allocution, See United States v. Al-Sadawi, 432 F.3d 419 (2nd Cir. 2005), and hearsay statements
officially obtained from witnesses by the government law enforcement authorities, e.g., statements
elicited by officials during ex parte interrogation of child complainants in sexual assault and child
abuse cases. The Crawford case said the "testimonial" statements would include statements made
under circumstances which would lead an objective witness reasonably to believe that the
statement would be available for use at a later trial". TheCrawford ruling could affect trial
admissibility of other hearsay statements that "declarants would reasonably expect to be used
prosecutorially," i.e., a declaration against interest made to a law enforcement officer, a statement
of a co-conspirator made with the assistance of a police informant, an excited utterance of a
declarant to a law enforcement agent, a dying declaration made to a police officer with officer
encouragement (Police are rumored, in some parts of the country, to be trained to obtain dying
declarations from victims in potential homicide cases.), present sense impression statements of a
law enforcement agent, e.g. statements by a cop to a dispatcher, present sense impressions of a
lay 911 reportee (See the 2006 USSC opinion in Davis v. Washington, 547 U.S. 813 (2006),
discussed more fully below, holding the 911 call "non-testimonial"), a child victim's outcry
statements to law enforcement officers or public officials who are not law enforcement agents,
SeeUnited States v. Bordeaux, 400 F.3d 548 (8th Cir. 2005), statements in public records, etc.
What sorts of hearsay is "not testimonial"? Where the declarant is the defendant, the defendant's
own statement, including prior testimony of the defendant, should be admissible as a statement of
a party; there is probably no constitutional right to confront oneself, and, even if there was, the
accused holds the key since he has only to make himself available to himself by testifying.
See United States v. Hansen, 434 F.3d 92 (1st Cir. 2006). The same approach would seem
applicable to an adopted statement (adoptive admission). The traditional co-conspirator's
statement made during pendency of the conspiracy and in furtherance thereof would not appear to
be testimonial. See United States v. Robinson, 367 F.3d 278 (5th Cir. 2004); United States v. Allen,
425 F.3d 1231 (9th Cir. 2005). Business records are not generally considered testimonial because
they are not generated for the primary purpose of being used at a trial or by the prosecution in a
criminal case, See United States v. Ellis, 460 F.3d 920 (7th Cir. 2006); United States v. Hagege, 437
F.3d 943 (9th Cir. 2006); United States v. Lee, 374 F. 3d 637 (8th Cir. 2004). But laboratory reports
generated by civilian employees of law enforcement crime labs, and, perhaps, government
employed medical examiners, would appear to be testimonial. In 2009, the USSC decided that state
forensic lab reports prepared for use in a criminal prosecution are testimonial evidence subject to
the confrontation clause and Crawford and the right of the defense to require live testimony of the
lab techncian. See Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S. Ct. 2527 (2009) where the
Massachusetts trial court admitted into evidence affidavits reporting the results of forensic analysis
which showed that material seized by the police and connected to the defendant was cocaine and
the USSC held that the "affidavits" were "testimonial," rendering the "affiants" subject to the
accused's right of confrontation of witnesses under the Sixth Amendment. Also see the Texas
"notice and demand" statute, Art. 38.41 CCP, that seems to brings Texas into compliance
withMelendez by permitting the defense to demand presence of the expert who performed the test.
SeeUnited States v. Feliz, 467 F.3d 227 (2nd Cir. 2006) holding autopsy reports non-testimonial and
thus no confrontation problem when the expert who prepared the report is unavailable. See
Zabrycki, Carolyn, Toward a Definition of "Testimonial": How Autopsy Reports Do Not Embody the
Qualities of A Testimonial Statement, 96. Cal. L. Rev. 1093 (2008). But see Martinez v. State, 311
S.W.3d 104 (Tex. App. - Amarillo 2010, pet. filed 9-10); Wood v. State, 299 S.W.3d 200 (Tex. App. -
Austin 2009, pet. ref'd) holding that autopsy reports are testimonial when prepared as part of a
criminal investigation. See Michael Graham, Justice Scalia's Fundamentally Flawed Confrontation
Clause Analysis Continues in Melendez-Diaz: It's Time to Begin Again, Criminal Law Bulletin, Vol. 45,
p. 1052, (2009) and this UPCOMING ARTICLE. Thus, there may be a Crawford issue when one law
enforcement expert is asked to testify in court to investigative facts revealed and opinion formed
by other law enforcement experts who are unavailable to testify, e.g., the police chemist who did
the testing is dead and another police chemist is called to testify to the former's lab work and
findings. See Sauerwin v. State, 214 S.W.3d 266 (Ark. 2005) allowing testimony from one state
medical examiner based on an autopsy performed by a retired colleague; People v. Goldstein, 786
N.Y.S.2d 428 (NYAD 1st Dept. 2004) where the prosecution's forensic psychiatrist was allowed to
testify to otherwise hearsay statements used in forming the expert's opinion. For a well researched
opinion holding that a nurse examiner's testimony concerning statements made by a sexual assault
complainant were not testimonial, see State v. Stahl, 855 N.E.2d 834 (OH. 2006). See also State v.
Bobadilla, 709 N.W.2d 243 (MN. 2006) holding in a sexual assault case that the statement of a
three-year-old child, who was incompetent to testify, to a child protection worker was not
testimonial. Prior inconsistent statements offered for the truth of the matter asserted as an
exception to the hearsay rule apparently would not come under the Crawford rule because the
declarant would be present at trial as a witness and, thus, "available." To repeat,
testimonial statements include "statements that were made under circumstances that would lead
an objective witness reasonably to believe that the statement would be available for use at a later
trial" and/or "statements that declarants would reasonably expect to be used prosecutorially."
See United States v. Summers, 414 F.3d 1287 (10th Cir. 2005). Scalia left for another day "any
effort to spell out a comprehensive definition of 'testimonial'." Remember, the Crawford rule only
applies in situations where the declarant witness is "unavailable." What if the defendant is
complicit in causing the declarant to become unavailable? Whether the defendant will be deemed
to have waived the confrontation right will depend on whether the defense wrongfully procured the
declarant's unavailability? This was not an issue in Crawford, but Scalia indicated in a footnote that
the Crawford decision was not designed to alter the rule that a defendant who creates the
unavailability of a witness can be deemed as forfeiting the right to object to the lack of
constitutional confrontation. As to non-testimonial hearsay, it appears, at least for the time-being,
that the pre-Crawford subjective test of Ohio v. Roberts, 448 U.S. 56 (1980), i.e. non-testimonial
evidence must either fall within a "firmly rooted hearsay exception" or bear "particularized
guarantees of trustworthiness," still applies to non-testimonial hearsay. It is conceivable that in the
future the majority of U.S.S.C. will hold that all non-testimonial hearsay is unprotected by the
Confrontation Clause. This would allow states to do radical surgery on the concept of non-
testimonial hearsay, perhaps, even removing any exceptional foundational requirements for its
receipt. Remember, that there is no Crawford issue if the evidence in question, even if testimonial,
is not offered to prove the truth of the matter asserted in it. Recall also that the protection of the
Confrontation Clause only protects a criminal defendant at his/her criminal trial; it has no
applicability at civil trials and does not limit hearsay offered by the defense against the
prosecution. Read these 19-page articles on Confrontation After Crawford (1), (2). Also, read
Fenner, Today's Confrontation Clause (After Crawford andMelendez-Diaz), 20 Creighton L. Rev. 101
(2009); Walsh, The Confrontation Clause AfterCrawford v. Washington: Clarifying the Meaning of
Testimonial Statements in Criminal Trials, 85 U. Det. Mercy L. Rev. 163 (2008); Latimer,
Jerome, Confrontation After Crawford: The Decision's Impact on How Hearsay Is Analyzed Under
the Confrontation Clause, 36 Seton Hall L. Rev. 327 (2006), Turkheimer, Deborah, Crawford
Triangle: Domestic Violence and the Right of Confrontation, 85 North Carolina L. Rev. 1 (2006);
Polelle, Michael, The Death of Dying Declarations in a Post-Crawford World, 71 Mo. L. Rev. 285
(2006); A.B.A. Standards - Sentencing (1993). This site contains some Crawford-based cases.
Other USSC cases fleshing out Crawford: In Davis v. Washington, 547
U.S. 813 (2006) the issue was whether a putative victim's statements to a 911 operator naming her
assailant, which were admitted at a criminal trial under a state's 'excited utterances' hearsay
exception, were 'testimonial' statements subject to the confrontation clause restrictions enunciated
in Crawford; the court, Justice Scalia writing the majority opinion with Justice Thomas concurring in
part and dissenting in part, held that the woman who made the 911 emergency call identifying
Davis as the perp of an ongoing assault was not acting as a witness, i.e., she was not testifying.
However, in Hammon v. Indiana, consolidated with Davis in a single opinion, the court held that an
oral accusation by a wife of an assault by her husband made in response to questions by an
investigating officer at the scene of an alleged crime, i.e., a domestic dispute, was an inherently
'testimonial' statement' under Crawford; the court court held that the wife's words were in
response to an official interrogation and were an obvious substitute for live testimony because they
do exactly what a witness does on direct examination; thus, under Crawford, the wife's words were
inadmissible. The Supreme Court in the Nevada case ofWhorton v. Bockting , 549 U.S. 406 (2007)
held that Crawford did not amount to a "watershed rule" that would be applied retroactively to
cases already final on direct review at the time of the Crawford decision. Thus, there will be no
reopening of pre-Crawford convictions, including those pending on appellate review
when Crawford was decided, that rested on hearsay evidence violative of Crawford. But
see Danforth v. Minnesota, 552 U.S. 264 (2008) making clear that statecourts are not constrained
from providing the accused with broader remedies for violation of federal constitutional rights than
the remedies mandated by the USSC, e.g., applying more liberal state court interpretation of
retroactivity to a federally guaranteed right; notice that this concept goes beyond the commonly
accepted rule that allows state courts to provide broader protection for individual rights provided
by the state's constitution. In Giles v. California, 554 U.S. __ , 128 S.Ct. 2678 (2008) the USSC
barred the use of an unavailable witness' prior statement holding that the statement of a murder
victim re prior death threats by the defendant, for obvious reasons unavailable to testify at trial, to
a police officer responding to an earlier domestic disturbance was protected by the confrontation
clause, unless the defendant killed the witness to prevent the witness from testifying , i.e.,
unconfronted out-of-court statements appear to be admissible only when the witness is unavailable
as a direct result of conduct intended by the defendant to render the witness unavailable for live in-
court testimony. Consequently, intent to prevent live in-court testimony is a necessary element in
the assessment of forfeiture of the constitutional right of confrontation. Prosecutors (not defenders)
can obtain a list of current state and federal cases dealing with Crawford issues from APRI by
emailing allie.phillips@ndaa-apri.org ]
Motion to Exclude Cooperating Witness' Testimony and Request for a Reliability
Hearing - (1)
Motion to Stay Civil Action Pending Resolution of Criminal Charge - When your criminal
client is facing a parallel civil lawsuit or investigation by a governmental agency for civil
misconduct, e.g., fraud, it is very dangerous to allow the client to make statements in connection
with the civil case because the statements may wind up being used by the government in the
parallel criminal prosecution; it is not uncommon for government agencies investigating civil
misconduct to share damaging information with the prosecuting arm of the government. If your
client is a person, be extremely wary of waiving the privilege against self-incrimination and talking
in the civil proceeding. Take a look at these cases involving parallel civil and criminal cases to get a
leg up in your research: United States v. Kordel, 397 U.S. 1 (1970) involving parallel civil FDA
investigation and criminal prosectuion for misbranding; United States v. Stringer, 535 F.3d 929 (9th
Cir. 2008) and United States v. Scrushy, 366 F. Supp. 2d 1134 ( N.D. Ala.2005) involved parallel
civil SEC securities fraud investigation and criminal prosecution for perjury, false statements and
criminal securities fraud.
Motion to Suppress Illegal Obtained Statement/Confession and for Hearing - From the
perspective of Bill of Rights constitutional law, your motion and hearing will be focusing on the Fifth
Amendment right not to be compelled to give testimony against oneself, the Sixth Amendment
right to the assistance of counsel, and the Fourteenth Amendment due process protection against
involuntary confession (the free and voluntary rule). (1 - 24 pages re searches, seizures, and
statements), (2 -sample), (3) Miranda v.Arizona, 384 U.S. 436 (1966) general rule that unwarned
statements of the defendant may not be used as evidence in the prosecution's case-in-chief;
requires, as a prelude tocustodial interrogation, that the suspect be advised of his/her rights and
voluntarily waive those rights; [Note: Several of the cases below deal with the U.S.S.C. definitions
of "custody" and "interrogation," both of which are required to trigger a Miranda warning; also,
remember that a truly spontaneous statement volunteered by a suspect in custody is by nature not
interrogation and not subject to the Miranda requirement.]; Wyrick v. Fields, 459 U.S. 42 (1982)
police don't have to give new warning if questioning is resumed after a pause, so long as the
warning was given within a reasonable time prior to the confession; Duckworth v. Egan, 492 U.S.
195 (1989) no exact wording of warning required;Oregon v. Mathiason, 429 U.S. 492 (1977) half-
hour encounter with police held not to involve custody;California v. Beheler, 463 U.S. 1121 (1983)
suspect who voluntarily accompanied police to station house held not to be in custody; Stansbury
v. California, 511 U.S. 318 (1994) suspect who accepted ride with police to cop shop held not to be
in custody; Berkemer v. McCarty, 468 U.S. 420 (1984) a traffic stop and questioning case indicating
that temporary investigative detention (Terry stop, as opposed to custodial arrest) is
not Miranda custody, even though suspect is not free to leave, and thus no warning and waiver
required as predicate for confession, see also Pennsylvania v. Bruder, 488 U.S. 9 (1988); Harris v.
New York, 401 U.S. 222 (1971) statements taken without Miranda warnings, though not compelled,
can be used to impeach a defendant's testimony at trial; Michigan v. Tucker, 417 U.S. 433
(1974); New Jersey v. Portash, 440 U.S. 450 (1979) compelled statements cannot be used to
impeach defendant's testimony at trial; United States v. Hubbell, 530 U.S. 27 (2000) Fifth
Amendment protects against prosecutor's use of incriminating information derived directly or
indirectly from actually compelled testimony; New York v. Quarles, 467 U.S. 649 (1984) public
emergency(safety) exigent circumstance exception to Miranda recognized, allowing questioning
without warning when required by public emergency for safety; Oregon v. Elstad, 470 U.S. 298
(1985) statements taken without complying with Miranda and their fruits are not inherently tainted
and Wong Sun does not apply to mere failure to give Miranda warnings; thus, a confession made
after a valid waiver of rights is not inadmissible merely because officers obtained an earlier
statement without a warning; Rhode Island v. Innis, 446 U.S. 291 (1980) statement of suspect who
had not been formally charged but had invoked right to counsel and who interjected into
conversation between cops in cruiser and subsequently lead cops to murder weapon held not to be
obtained as result of interrogation; Arizona v. Mauro, 481 U.S. 520 (1987); Illinois v. Perkins,496
U.S. 92 (1990); Pennsylvania v. Muniz, 496 U.S. 582 (1990) routine questions asked during booking
process not considered as interrogation triggering a warning of rights;North Carolina v. Butler, 441
U.S. 369 (1979); Fare v. Michael C., 442 U.S. 707 ( 1979); Michigan v. Mosley, 423 U.S. 96 (1975)
an important "right to remain silent" Miranda decision making clear that all interrogation has to
cease once the suspect clearly and unambiguously asserts his/her right to remain silent; however,
law enforcement authorities are not prevented from attempting to talk to the suspect a second
time so long as the initial assertion fo the right to silence is honored scrupulously; Edwards v.
Arizona, 451 U.S. 477 (1981) an important "right to counsel" Miranda decision making clear that all
interrogation has to cease once the suspect asserts his/her right to counsel and law enforcement
may not resume questioning unless the suspect reinitiates the contact. Arizona v. Roberson, 486
U.S. 675 (1988) Edwards applies to interrogation for crimes other than the one upon which the
suspect is being held in custody; Minnick v. Mississippi, 498 U.S. 111 (1990) under Edwards, once
the right to counsel is asserted, further interrogation must take place in the presence of cousel
unless there has been a reinitiation of contact by the suspect and a subsequent knowing waiver of
counsel; Oregon v. Bradshaw, 462 U.S. 1039 (1983) under Edwards, the supect's question to
officers "Well what is going to happen to me now?" after assertion of the Miranda right to remain
silent was viewed as a reinitiation of contact that allowed further interrogation ; Davis v.
United States, 512 U.S. 452 (1994) "Maybe I should talk to a lawyer," held to be too ambiguous and
not an unequivocal invocation of Miranda; Smith v. Illinois, 469 U.S. 91 (1984) "Uh, yeah. I'd like to
do that," by the suspect in response to the Miranda warning that he had a right to consult with a
lawyer and have one present during interrogation held to be an unambiguous and unequivocal
assertion of the right to counsel requiring that officers cease further interrogation; Connecticut v.
Barrett, 479 U.S. 523 (1986) waiver of rights re oral confession held valid even though suspect
refused to participate in making any written statement; McNeil v. Wisconsin, 501 U.S. 171
(1991); Moran v. Burbine, 475 U.S. 412 (1986) valid waiver of Miranda rights obtained even though
police did not advise suspect that lawyer employed by his family and seeking to advise him was
waiting outside of interrogation room; Withrow v. Williams, 507 U.S. 680 (1993); Dickerson v.
United States, 530 U.S. 428 (2000); Colorado v. Connelly, 479 U.S. 157 (1986); Arizona v.
Fulminante, 499 U.S. 279 (1991); Massiah v. United States, 377 U.S. 201 (1964) held that
incriminating statements obtained from the defendant by a wired police informant while the
defendant was free on bail and in the absence of his counsel violated the defendant's Sixth
Amendment right to counsel; Kansas v. Ventris, __ U.S. __ , 129 S.Ct. 1841 (2009) held that a
statement taken from a defendant in violation ofMassiah's Sixth Amendment right to counsel can
be used to impeach the accused's testimony at trial;Brewer v. Williams, 430 U.S. 387 (1977) Sixth
Amendment case, not decided on Miranda, where infamous "Christian Burial Speech" viewed as
functional equivalent of interrogation because cop knew his words were likely to prompt an
incriminating statement by suspect who had been formally charged and had counsel; Patterson v.
Illinois, 487 U.S. 285 (1988); Maine v. Moulton, 474 U.S. 159 (1985);United States v. Henry, 447
U.S. 264 (1980); Kuhlmann v. Wilson, 477 U.S. 436 (1986); Texas v. Cobb, 532 U.S. 162
(2001); Kaupp v. Texas, 538 U.S. 626 (2003); Chavez v. Martinez, 538 U. S. 760 (2003) an
unwarned statement taken while Martinez was being treated for gunshot wounds received in an
altercation with the police was not a 42 USC 1983 Fifth Amendment civil rights violation of where
he was never charged with a crime and his answers were never used against him in a criminal
proceeding;; Missouri v. Seibert, 542 U.S. 600 (2004) police protocol for custodial interrogation that
calls for officer to intentionally (purposely) give no warnings of Miranda rights until interrogation
has produced a first confession, whereupon, midstream warnings are given that lead to the suspect
covering the same ground in a second confession does not effectively comply
with Miranda'sconstitutional requirement, declining to extend Oregon v. Elstad, above; Yarborough
v. Alvarado, 541 U.S. 642 (2004) another case about what qualifies as custody; Fellers v. United
States, 540 U.S. 519 (2004) a case about police talking with an indicted defendant who had not
been Mirandized; Hiibel v. Sixth Judicial District Court of Nevada, Humbolt County, 542 U.S.177
(2004) conviction for refusing to give name to a police officer during a lawful Terry stop upheld
because disclosure in this case presented no reasonable danger of incrimination. United States v.
Patane, 542 U.S. 630 (2004) failure to give suspect required prophylactic Miranda warnings did not
require suppression of non-testimonial physical fruits of suspect's unwarned but voluntary
statements, i.e. the Wong Sun "fruit of the poisonous tree" doctrine of exclusion does not apply
to Miranda violations; Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006) regarding the inapplicability
of the exclusionary rule to failure to comply with Article 36 of the Vienna Convention on Consular
Relations regarding communication between an individual and his consular officers when the
individual is detained by authorities in a foreign country. See also, Medellin v. Texas, 552 U.S. 491
(2008); Article 38.22 CCP. Does the U.S. President have the constitutional right under principles of
comity to order state courts to follow a decision of the International Court of Justice? See Ex parte
Medellin, 206 S.W.3d 584 (Tex. Crim. App. 2006) where the Texas Court of Criminal Appeals said.
"No."; Montejo v. Louisiana, __U.S.__, 129 S.Ct. 2079 (2009) overruling Michigan v. Jackson, 475
U.S. 625 (1986) and holding it completely unjustified to presume that a defendant's consent to
police-initiated interrogation was involuntary or coerced simply because the defendant had
previously been appointed a lawyer; Corley v. United States, __ U.S. __ (2009) indicating that the
federal McNabb-Mallory Rule re the requirement of taking the accused before a magistrate without
unreasonable and unnecessary delay still has some viability; Maryland v. Shatzer, __ U.S. __ (2010)
holding that an additional round of questioning of a suspect who has previously invoked his right to
counsel is allowed when more than 14 days have elapsed after release from investigative
custody;Florida v. Powell, __ U.S. __ (2010) held that advice that a suspect has "the right to talk
with a lawyer before answering any [of the law enforcement officer's] questions" and that he "can
invoke this right at any time ... during this interview" satisfies the Miranda requirement of warning
re advice of counsel;Berghuis v. Thompkins, __ U.S. __ (2010) holding that, in order to invoke
the Miranda right to remain silent, the suspect must explicitly tell police that s/he wants to remain
silent; simply remaining silent does not invoke the right.
Motion to Suppress Confession of Co-Defendant - Bruton v. United States, 391 U.S. 123
(1968);Roberts v. Russell, 392 U.S. 293 (1968); Cruz v. New York, 481 U.S. 186 (1987); Gray v.
Maryland , 523 U.S. 185 (1998). [Note that the so-called Bruton Rule, prohibiting the admissibility in
a jury trial of a co-defendant's statement that directly incriminates the defendant under the Sixth
Amendment Confrontation Clause, is inapplicable when the defendant testifies in his/her own
behalf. See Nelson v. O'Neal, 402 U.S. 622 (1971); in joint trials, the solution for the prosecution is
to offer a redacted version of the co-defendant's statement the omits all references to the
defendant; be certain that the redacted statement is only read to the jurors and is not visually
displayed to them. See the Motion to Redact Inadmissible Evidence from Admissible Evidence that
follows this squib.]
Motion to Redact Inadmissible Evidence from Admissible Evidence - [When moving to
redact inadmissible evidence from admissible evidence, move the court to so structure the
admissible evidence that there is no reference or implication regarding the existence of the
excluded (redacted) evidence. This motion may be appropriate, for example, when a document
contains both inadmissible and inadmissible statements, e.g., a business record that contains
statements not within the personal knowledge of the maker or an otherwise admissible confession
of a co-defendant containing inadmissible statements implicating the non-testifying defendant at
their joint trial. See Gray v. Maryland, 523 U.S. 125 (1998) regarding co-defendant's statements;
see also Richardson v. Marsh, 481 U.S. 200 (1987). ]
Motion to Suppress Illegally Intercepted Communications and for Hearing - (1 -
Challenging Federal Wiretap Evidence) Article 18.20 Section 14 CCP; ABA Electronic Surveillance
Standards -Part A & Part B (2001); Federal: Electronic Surveillance Laws; Consensual Recording
Law;USCode/CFR; USC update; CALEA (Communications Assistance for Law Enforcement ) web
site.
Motion to Suppress (Exclude) Tangible Evidence - (1)
Motion to Suppress Illegally Obtained Evidence and for Hearing (1 - 28 pages of basic
federal case law), (2), (3 - 10 pages of federal case law regarding automobile search), (4 -
sample); Weeks v. United States, 232 U.S. 383 (1914) warrantless search of private home
improper; Amos v. United States, 255 U.S. 313 (1921) warrantless search of private home improper
; Agnello v. United States269 U.S. 20 (1925) warrantless search of private home improper; Byars v.
United States, 273 U.S. 28 (1927) search of private home with defective warrant; United States v.
Berkeness, 275 U.S. 149 (1927) search of private home with defective warrant; Taylor v. United
States, 286 U.S. 1 (1932) warrantless search of private home improper; Grau v. United States, 287
U.S. 124 (1932) search of private home with improper warrant; Nathanson v. United States 290
U.S. 41 (1933) search of private home with warrant improper; McDonald v. United States, 335 U.S.
451 (1948) warrantless search of private home improper; Draper v. United States, 358 U.S. 307
(1959) existence of probable cause and reasonable grounds for warrantless arrest and subsequent
search; Mapp v. Ohio, 367 U.S. 643 (1961) the exclusionary rule is an essential part of both the
Fourth and Fourteenth Amendments (overruling Wolf v. Colorado, 338 U.S. 25 (1949); Wong Sun v.
United States, 371 U.S. 471 (1963) discussion of "fruit of poisonous tree" doctrine and connection
between illegal arrest and statement becoming "so attenuated as to dissipate the taint"; Frisbie v.
Collins, 342 U.S. 519 (1952) power of a trial court to try a person for a crime not impaired by fact
that such person has been brought within the trial court's jurisdiction by reason of a forcible
abduction; Dickerson v. United States, 530 U.S. 428 (2000) federal courts hold no supervisory
power over courts of the States and may intervene only to correct constitutional violations; Warden
v. Hayden, 387 U.S. 294 (1967) warrantless seizure of "mere evidence" e.g., clothing, vis a vis
fruits and instrumentalities of crime allowed; United States v. Leon,468 U.S. 897 (1984) Fourth
Amendment exclusionary rule modified so as not to bar the use in the prosecution's case-in-chief of
evidence obtained by officers acting in reasonable (good faith) reliance on a search warrant issued
by a neutral and detached magistrate but ultimately found to be unsupported by probable
cause; Nix v. Williams, 467 U.S. 431 (1984) "inevitable discovery" of evidence exception to the
exclusionary rule adopted, provided that the prosecution proves the inevitability by a
preponderance of the evidence; Camara v. Municipal Court of the City and County of San Francisco,
387 U.S. 523 (1967) routine limited administrative inspection by building inspector without
particularized suspicion to ensure compliance with city housing code governed by Fourth
Amendment and warrant requirement; New York v. Burger, 482 U.S. 691 (1987) warrantless
administrative search of highly regulated industry, i.e., junkyard, pursuant to statute did not violate
Fourth Amendment;Michigan v. Tyler, 436 U.S. 499 (1978) administrative inspection of fire-
damaged premises to reveal cause of blaze upheld; Ker v. California, 374 U.S. 23 (1963) objectively
reasonable to permit law enforcement officers to make a warrantless entry onto private property to
prevent the imminent destruction of evidence; United States v. Santana, 427 U.S. 38 (1976)
objectively reasonable to allow officers to enter without a warrant onto private property in "hot
pursuit" of a fleeing suspect; United States v. Dionisio, 410 U.S. 1 (1973) voice exemplars, like
handwriting exemplars and fingerprints, are not testimonial or communicative evidence and,
therefore, do not compel any witness to testify against himself; the grand jury subpoena and the
directive to make a voice recording were not a Fourth Amendment infringements and, thus, not
subject to a preliminary requirement of reasonableness;Schmerber v. California, 384 U.S. 757
(1966) upholding governmental intrusion on the person for purposes of seizing physical evidence,
i.e., blood and stating the the two Fourth Amendment issues involved in obtaining physical
evidence are seizure of the person necessary to bring him into contact with government agents
and the subsequent search and seizure of the evidence; Katz v. United States, 389 U.S. 347 (1967)
the Fourth Amendment protects people not places; California v. Greenwood, 486 U.S. 35 (1988)
warrantless search and seizure of garbage left for collection outside curtilage of home is not
prohibited by Fourth Amendment; Oliver v. United States, 466 U.S. 170 (1984) (consolidated
withThornton case) Fourth Amendment protection of "persons, houses, papers, and effects does
not include "open fields" and/or the crops growing in them, no matter that accused has tried to
prevent access with barriers, fences and signs, but does include the curtilage, the area
immediately surrounding the home, citing Hester v. United States, 265 U.S. 57 (1924); New Jersey
v. T.L.O., 469 U.S. 325 (1985) dealing with proper standard for determining legality of searches
conducted by public school officials, holds that Fourth Amendment prohibits unreasonable searches
and seizures by public school officials though the search here was deemed reasonable; Board of
Education of Independent School District No. 92 of Pottawatomie County v. Earls, 536 U.S. 822
(2002); Safford Unified School District #1 v. Redding, ___U.S. __ (2009) a strip search in which the
search of a 13-year-old student's bra and underpants by school officials acting on reasonable
suspicion that she had brought forbidden over-the-counter drugs to school was held to violate the
Fourth Amendment where there were no reasons to suspect the drugs presented a danger or were
concealed in her underwear; the content of the suspicion failed to match the extreme degree of
intrusion; however, because there was reason to question the clarity with which the right was
established, the school official who ordered the unconstitutional search was entitled to qualified
immunity from liability; Skinner v. Railway Labor Executives Association, 489 U.S. 602 (1989)
warrantless mandatory regulatory blood and urine tests for railway employees involved in train
accidents or found to be in violation of safety regulations to detect alcohol and drug abuse held to
be reasonable searches; Treasury Employees v. Von Raab, 489 U.S. 656 (1989) upholding drug
tests for United States Customs Service employees seeking transfer or promotion to certain
positions;Veronia School District v. Acton, 515 U.S. 646 (1995) upholding random drug testing of
student athletes; Kyllo v. United States, 533 U.S. 27 (2001) use of a thermal-imaging device aimed
at a private home from a public street to detect relative amounts of heat within the home is a
search that is presumptively unreasonable without a warrant; Rakas v. Illinois, 439 U.S. 128 (1978)
passengers without claim of ownership of vehicle of the items seized held not to have standing to
object to allegedly unlawful search and seizure; United States v. Payner, 447 U.S. 727 (1980) one
has standing to complain only about violation of his own constitutional rights; Rawlings v.
Kentucky, 448 U.S. 98 (1980) test of standing is legitimate expectation of privacy; Minnesota v.
Olson, 495 U.S. 91 (1990) guest staying overnight in another individual's home had reasonable
expectation of privacy and, thus, standing to object to search in house of someone else; United
States v. Padilla, 508 U.S. 77 (1993) membership in conspiracy does not confer standing re
searches of other conspirators; Aguilar v.Texas, 378 U.S. 108 (1964) search warrant held
invalid; Stanford v. Texas, 379 U.S. 476 (1965) invalid search warrant; James v Louisiana 382 U.S.
36 (1965) invalid warrantless search; Riggan v. Virginia, 384 U.S. 152 (1966) invalid warrantless
search; Recznik v. City of Lorain, 393 U.S. 166 (1968) invalid warrantless search; Von Cleff v. New
Jersey, 395 U.S. 814 (1969) improper warrantless search;Andresen v. Maryland, 427 U.S. 463
(1976) search warrant held sufficiently specific and informant's data adequately
verified; Minnesota v. Carter, 525 U.S. 83 (1998) individuals present in a house for several hours to
conduct a business transaction, i.e., bagging cocaine, had no standing; Spinelli v. United States,
393 U.S. 410 (1969) factual requirements of affidavit for search warrant discussed;Illinois v.
Gates, 462 U.S. 213 (1983) application of Fourth Amendment to magistrate's issuance of a search
warrant on the basis of a partially corroborated informant's tip; Coolidge v. New Hampshire,403
U.S. 443 (1971) search warrant invalid, seizure of car in driveway not incident to arrest inside
house, but observation of items re "plain view" doctrine discussed; Arizona v. Hicks, 480 U.S. 321
(1987) re the "plain view" doctrine, when police take action unrelated to the objectives of an
authorized intrusion, which expose to view concealed portions of the premises or its contents, a
new unrelated invasion of the accused's privacy, unjustified by an otherwise valid entry, occurs,
and seizure under the "plain view doctrine" requires probable cause, rather than mere
suspicion; Horton v. California, 496 U.S. 128 (1990) warrantless seizure of evidence of crime in
"plain view" not prohibited just because discovery of the evidence was not inadvertent; United
States v. Chadwick, 433 U.S. 1 (1977) whether a search warrant is required before federal agents
may open a locked footlocker which they have lawfully seized at the time of arrest of its owners,
where there is probable cause to believe that the footlocker contains contraband; Richards
v. Wisconsin, 520 U.S. 385 (1997); Ybarra v. Illinois, 444 U.S. 85 (1979); United States v. Watson,
423 U.S. 411 (1976) legality of warrantless arrest and subsequent search of arrestee's automobile
carried out with arrestee's purported consent; Chambers v. Maroney, 399 U.S. 42 (1970)
admissibility of evidence seized from motor vehicle in which accused was passenger after vehicle
was taken to police station and thoroughly searched without a search warrant;South Dakota v.
Opperman, 428 U.S. 364 (1976) whether Fourth Amendment permits police to conduct routine
inventory search of lawfully impounded motor vehicle ( impounded here for violation of municipal
parking violations); Florida v. Wells, 495 U.S. 1 (1990) an inventory search must be regulated by
"standardized criteria" or "established routine" so as not to be a ruse for a general rummaging in
order to discover incriminating evidence; United States v. Edwards, 415 U.S. 800 (1974) whether
the Fourth Amendment should be extended to exclude from evidence certain items of clothing
taken from accused while in custody at a jail (here a city jail) approximately ten hours after
arrest; Illinois v. Lafayette, 462 U.S. 640 (1983) at the time of arrival at the police station, police
may, as a valid inventory search, conduct a warrantless search of a shoulder bag carried by the
arrestee; Cupp v. Murphy, 412 U.S. 291 (1973) limited warrantless search and seizure of readily
destructible fingernail scrapings during brief period of detention where there was probable cause to
believe accused had committed offense, murder here; United States v. Robinson, 414 U.S. 218
(1973); Chimel v. California, 395 U.S. 752 (1969) permissible scope under the Fourth Amendment
for search incident to lawful arrest; Virginia v. Moore, 553 U.S. __, 128 S.Ct.1598 (2008) where the
USSC rejected the defendant's contention that the constitutionality of his arrest under the U.S.
Constitution depended on the validity of the arrest under state law (The Va. state law allowed
citation for the offense but forbade arrest, and the cop arrested the defendant. The Fourth
Amendment allows the cop to arrest for the most minor crimes committed in the cop's presence
provided there is probable cause to believe the person committed the crime. Texans should look
at Art. 38.23 CCP stating in part that "no evidence obtained by an officer or other person in
violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or
laws of the United States of America, shall be admitted in evidence against the accused on the trial
of any criminal case."); Payton v. New York, 445 U.S. 573 (1980) constitutionality of state statutes
authorizing police officers to enter a private residence without a warrant and with force, if
necessary, to make a routine arrest; California v. Carney, 471 U.S. 386 (1985);California v.
Acevedo, 500 U.S. 565 (1991) the application of the "automobile exception" to the warrant
requirement of the Fourth Amendment to the search of a closed container in the trunk of a motor
vehicle;California v. Hodari D., 499 U.S. 621 (1991) what constitutes a "seizure" within the meaning
of the Fourth Amendment; New York v. Belton, 453 U.S. 454 (1981) when a police officer has made
a lawful custodial arrest of an automobile, the Fourth Amendment allows the officer to search the
passenger compartment of that vehicle as a contemporaneous incident of arrest; Knowles v. Iowa,
525 U.S. 113 (1998) an officer may search inside a suspect's vehicle under Belton only if the
suspect is arrested;Arizona v. Johnson, 555 U.S. __, 129 S. Ct. 781 (2009) a stop and frisk of a
passenger in a car where the court held that to justify a patdown of either a driver or a passenger
during a lawful investigatory stop, just as in the case of a pedestrian reasonably suspected of
criminal activity, the police must harbor a reasonable suspicion that the person subjected to the
frisk is armed and dangerous; Arizona v. Gant, __ U.S. __, 129 S. Ct. 1710 (2009) finding a search
unjustified where the accused was arrested for DWLS, handcuffed, and locked in the back of the
patrol car and could not have accessed his car to retrieve weapons or evidence at the time of the
search, a search by police officers of his car where cocaine was discovered in the pocket of a jacket
on the backseat could not be upheld under theNew York v. Belton search-incident-to-arrest
exception to the warrant requirement. The USSC held that the Chimel wingspan approach allows
cops to search the passenger comopartment of the motor vehicle only when the person arrested is
not secure and within thereachinbg distance of the passenger compartment at the time of the
search. (The Gant scenario - the defendant being secured by handcuffs and in custody in the
locked police cruiser at the time of the search, not the arrest, - is a logical and long-needed
limitation on Belton.); Thornton v. United States 541 U.S. 615 (2004) Belton governs even when an
officer does not make contact with the occupant until the person arrested has left, i.e., stepped out
of, his vehicle; Michigan v. Long, 463 U.S. 1032 (1983); Ohio v. Robinette, 519 U.S. 33
(1996); Colorado v. Bertine, 479 U.S. 367 (1987); Terry v. Ohio, 392 U.S.1 (1968) reasonableness of
"stop-and-frisk" on less than probable cause upheld; Davis v. Mississippi, 394 U.S. 721 (1969)
lawless investigative dragnet detention or seizure of person for purpose of fingerprinting and
questioning in the absence of probable cause or a warrant held to exceed the permissible limits of
temporary Terryseizures; Hayes v. Florida, 470 U.S. 811 (1985) transportation to and investigative
detention at the police station without probable cause or judicial authorization violates the Fourth
Amendment; Dunaway v. New York, 442 U.S. 200 (1979) Terry does not extend to authorize
investigative interrogations at the police station on less than probable cause for a full-fledged
arrest, even though proper Mirandawarnings were given; Adams v. Williams, 407 U.S. 143 (1972)
informant's tip validated limited frisk for weapon; United States v. Hensley, 469 U.S. 221 (1985)
stop and brief detention of individual who is subject of "wanted flyer" while police try to ascertain if
there is an outstanding arrest warrant for such individual did not violate Fourth
Amendment; United States v. Sharpe, 470 U.S. 675 (1985) re the length of a "stop," temporary
detention, e.g., 20 minutes here but no "bright line", after valid stop of individual by law
enforcement officers to investigate suspected criminal conduct held reasonable; Brown v. Texas,
443 U.S. 47 (1979) "stop" deemed a seizure of the person under Fourth Amendment and
reasonableness of stop balanced between interest of public and individual's right to personal
freedom from interference by law officers; Hibel v. Sixth Judicial Court of Nevada, 542 U.S. 177
(2004) conviction for failure to identify oneself offense occurring during reasonable
suspicion Terry detention ("stop") did not violate Fourth Amendment; Minnesota v. Dickerson, 508
U.S. 366 (1993) contraband, e.g., small lump reminiscent of packaged crack cocaine in accused's
nylon jacket, of "plain feel" based on sense of touch during protective patdown frisk held
admissible under Fourth Amendment; Florida v. J.L., 529 U.S. 266 (2000) because requirement of
"reasonable suspicion" not met, anonymous tip that individual is carrying a weapon, without more,
held insufficient to justify law enforcement officer's stop-and-frisk of that individual; Illinois v.
Wardlow, 528 U.S. 119 (2000) stop and weapons pat-down frisk of individual fleeing police in area
known for heavy narcotics trafficking held a valid stop-and-frisk; United States v. Martinez-Fuerte,
428 U.S. 543 (1976) a brief, suspicionless seizure (stop) at a highway checkpoint for the purpose of
intercepting illegal immigrants is reasonable and does not violate the Fourth Amendment; United
States v. Flores-Montano, 541 U.S. 149 (2004) dismantling and search of vehicle's gas tank without
probable cause or reasonable suspicion at international border upheld as justifiable,
citing Carroll; Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990) a state's use of
highway sobriety checkpoints [not the roving patrol stops disapproved in Delaware v. Prouse, 440
U.S. 648 (1979)] to seize (stop) vehicles briefly and without suspicion is reasonable for the purpose
of combating drunk driving and does not violate the Fourth and Fourteenth Amendments; City of
Indianapolis v. Edmond 531 U.S. 32 (2000) a highway checkpoint program seizing vehicles without
particularized suspicion and whose primary purpose is simply to discover and interdict illegal
narcotics and thereby control crime violates the Fourth Amendment; Illinois v. Lidster, 540 U.S. 419
(2004) witness vehicle checkpoint to find witness to hit-and-run traffic offense was akin to seeking
information from pedestrians and was held not to be analogous to Edmond and valid because its
purpose was not to apprehend the vehicle's occupants but other persons; Stoner v. California, 376
U.S. 483 (1964) warrantless search of accused's hotel room in his absence with consent of
unauthorized desk clerk;Bumper v. North Carolina, 391 U.S. 543 (1968) search can not be justified
as lawful on the basis of consent given only after the official conducting the search has asserted
that he possesses a warrant and prosecution has burden of proving consent was freely and
voluntarily given; Schneckloth v. Bustamonte, 412 U.S. 218 (1973) in upholding the voluntary
consent of a householder, defines voluntary consent, not the result of duress or coercion, express
or implied, as one of well-delineated exceptions to the rule that a search conducted without a
warrant is per se unreasonable and embraces "totality of circumstances" approach and establishes
that voluntariness does not require sine qua nonproof of knowledge of right to refuse, though this a
factor to be taken into account; Maryland V. Buie, 494 U.S. 325 (1990) the level of justification
necessary under the Fourth Amendment before police while arresting a suspect in his home
pursuant to an arrest warrant may conduct a warrantless sweep of all parts of the premises; Illinois
v. Rodriquez, 497 U.S. 177 (1990); Florida v. Rodriquez, 469 U.S. 1 (1984) mere police questioning
does not constitute a seizure and even when police have no reasonable basis for suspecting a
particular individual, they may approach the individual, ask questions of that individual, ask to
examine the individual's identification, and request consent to search his luggage;Florida v.
Bostick, 501 U.S. 429 (1991) police officers boarding a bus at random and asking occupants
questions and requesting consent to search occupants' luggage under circumstances where a
reasonable person would understand he could refuse to cooperate not necessarily a seizure and
cramped confines of bus is a factor to be considered in determining voluntariness of
consent; Whren v. United States, 517 U.S. 806 (1996) temporary detention of motorist who police
have probable cause to believe has committed traffic violation held consistent with Fourth
amendment even though reasonable officer would not have been motivated to stop car by desire
to enforce traffic laws; Devenpeck v. Alford543 U.S. 146 (2004) subjective intent of the arresting
officer, however it is determined, is no basis for invalidating an arrest ; thus, an arrest for one
offense, e.g., violation of a privacy act, for which there is no probable cause and which is not
"closely related" to the offense for which there was probable cause, e.g. impersonating a police
officer, does not render the arrest unlawful under the Fourth Amendment because the officer's
state of mind (except for the facts he knows) is irrelevant to the existence of probable
cause; Knowles v. Iowa, 525 U.S. 113 (1998) vehicle traffic stop of accused with issuance of citation
rather than custodial arrest did not authorize police officer to conduct full search of vehicle;Ornelas
v. United States, 517 U.S. 690 (1996) applicable standard of appellate review re questions of
reasonable suspicion and probable cause to make warrantless search provides for de
novo review;Atwater v. City of Lago Vista, 532 U.S. 318 (2001) Fourth Amendment does not forbid
a warrantless arrest for a minor criminal offense, e.g., misdemeanor seatbelt violation, punishable
only by a fine;United States v. Drayton, 536 U.S. 194 (2002); United States v. Arvizu, 534 U.S. 266
(2002); Kaupp v. Texas, 538 U.S. 626 (2003) an arrest case; Maryland v. Pringle, 540 U.S. 366
(2003) a probable cause case; United States v. Banks, 540 U.S. 31 (2003) a warrant case involving
use of battering ram to break a door fifteen to twenty seconds after giving notice of authority and
purpose; Groh v. Ramirez,540 U.S. 551 (2004) search warrant for home that totally failed to
particularly describe the "persons or things to be seized" held facially invalid with court noting that
searches and seizures inside a home without a warrant are presumptively unreasonable; Illinois v.
Caballes, 543 U.S. 405 (2005) use of a drug-detection dog to sniff the around the exterior of a
vehicle without reasonable suspicion during a lawful stop for issuance of a traffic ticket or warning
does not rise to the level of a constitutionally cognizable infringement of the Fourth
Amendment; Illinois v. McArthur, 531 U.S. 326 (2001) preventing accused from entering home for
two hours while police officers with probable cause obtained search warrant deemed
reasonable; Muehler v. Mena, 544 U.S. 93 (2005) extended restraint and detention of individuals
handcuffed on the scene where a search warrant was being executed upheld as not violative of the
Fourth Amendment, citing Michigan v. Summers, 452 U.S. 692 (1981) and that officers questioning
detainee during the detention did not violate her Fourth Amendment rights; United States v.
Grubbs, 547 U.S. 90 (2006) in which the validity of a conditional anticipatory search warrant with
an affidavit explaining that the warrant would only be executed after a triggering event, e.g.,
controlled delivery of contraband at the location, was upheld, an "anticipatory warrant" being a
warrant based upon an affidavit showing probable cause that at some future time (but not
presently) certain evidence of crime will be located at a specified place; also, the "particularity
requirement of the Fourth Amendment does not require specification in the warrant of the
triggering conditions precedent to execution of the warrant; United States v. Matlock, 415 U.S. 164
(1974) upholding the validity of the prosecution's proof by a preponderance of the evidence of the
voluntary consent of a third party co-inhabitant to search the living quarters of the accused over
which the consenting party possessed common authority or other sufficient relationship to the
premises or effect sought to be inspected; Illinois v. Rodriquez, 497 U.S. 177 (1990) validity of a
warrantless entry based upon the consent of a third party who the police, at the time of entry,
reasonably believe to possess common authority over the premises, but who in fact does not have
such authority, is assessed based on the reasonable belief of the police that the third party giving
consent had joint access or common control; Georgia v. Randolph, 547 U.S. 103 (2006) (1 - based
on language in this case, can one now argue that consent is not free and voluntary unless the
consenting party is actually aware of the right not to consent) a co-occupant wife's consent to
search after the physically present husband's unequivocal refusal to permit entry does not prevail
over the husband's stated refusal, rendering the warrantless search unreasonable and invalid as to
the husband;Brigham City v. Stuart, 547 U.S. 398 (2006) the emergency assistance exigent
circumstance dispensing with the requirement of a warrant applies to a situation where police
enter a home without a warrant when they have an objectively (meaning that the
cop's subjective motivation is not relevant to he inquiry) reasonable basis for believing that an
occupant is seriously injured or imminently threatened with such injury; Michigan v. Fisher,
__U.S.__, 130 S.Ct. 546 (2009) upholding warrantless police entry where there was an objectively
reasonable basis for believing that medical assistance was needed, or persons were in
danger; Wilson v. Arkansas, 514 U.S. 927 (1995) common law "knock and announce" principle
forming part of reasonableness inquiry under Fourth Amendment; Hudson v. Michigan, 547 U.S.
586 (2006) centering on the legal effect or remedy for a premature entry with a search warrant but
without a proper "knock and announce," held that a violation of the "knock and announce" rule,
which does have a valid purpose in protecting against defensive violence by a surprised occupant,
damage to private property occasioned by the breaking, and privacy interests of occupants, does
not requireexclusionary rule suppression of evidence found in a search violative of the "knock and
announce rule" and discussing alternatives to the exclusionary rule; Samson v. California, 547 U.S.
843 (2006) holding that a condition of parole release can so diminish or eliminate a released
prisoner's reasonable expectation of privacy that a suspicionless search by a law enforcement
officer would not offend the Fourth Amendment; Brendlin v. California, 551 U.S. 249 (2007) holding
that when a police officer makes a traffic stop, the passenger, as well as the driver, is seized within
the meaning of the Fourth Amendment and has standing to challenge the constitutionality of the
stop and discussing when a person is "seized" under the Fourth Amendment; Herring v. United
States, __ U.S. __, 129 S.Ct. 695 (2009) dealt with the admissibility of contraband seized during a
search of a defendant conducted by an officer incident to an arrest based on the officer's
reasonable belief there was an outstanding arrest warrant for the defendant, a belief that turned
out to be wrong because of a negligent bookkeeping error by another police employee; the USSC
held for the first time that the good-faith exception to the exclusionary rule applied to
recordkeeping mistakes by law enforcement officers; Ontario v. Quon, __U.S. __ (2010) holding that
the search of text messages received on a cop's employer -provided pager was reasonable under
the circumstances. For other statutory sources that may have Fourth Amendment implications, see
the federal Privacy Protection Act, the federal Foreign Intelligence Surveillance Act, electronic
surveillance laws (1) (2), and the US Code; Articles 28.01, 38.23 CCP.
Motion to Go Beyond the Face of the Affidavit Supporting the Search Warrant and
Challenge the Truthfulness of Statements Made in the Affidavit - (This motion (1) is based
on the case ofFranks v. Delaware, 438 U.S. 154 (1978).
Motion to Exclude Fruits of Electronic Surveillance - Olmstead v. United States, 277 U.S. 438
(1928); Katz v. United States, 389 U.S. 347 (1967); United States v. White, 401 U.S.745
(1971); Kyllo v. United States, 533 U.S. 27 (2001); ABA Standards - Electronic Surveillance - Part
A & Part B(2001); Electronic Surveillance Laws; Consensual Recording Law.
Motion for Suppression of Fungible Evidence Due to Fatal Flaw in Chain of
Custody - SeeState v. Scott, 33 S.W.3d 746 (Tenn. 2000).
Motion for Blind, Sequential Lineup - See Eyewitness Misidentification. See also Motion to Use
Best Practices in Lineup and Eyewitness Interviews; NYSDA Hot Topics in Eyewitness Evidence links
to current cases and downloadable motions; (1 - 76 pages), (2 - NLADA links), (3 - NACDL links)
Motion to Apply a Rational Due Process Analysis Under the State and Federal
Constitution to the Test the Trial Court Uses to Reliability of the Eyewitness
Identification and Ergo the Admissibility of the Identification - See Eyewitness
Misidentification for discussion and authorities.
Motion to Suppress Photographic Spread and for Hearing on Illegal
Identification - United States v. Ash, 413 U.S. 300 (1973); Simmons v. United States, 390 U.S.
377 (1968). See Eyewitness Misidentification.
Motion to Suppress Lineup Identification and In-Court Identification and for Hearing on
Illegal Identification - (1 - 11 pages re identification evidence under the 5th and 6th
Amendments), (2 - Sample) United States v. Wade, 388 U.S. 218 (1967); Stovall v. Denno, 388 U.S.
293 (1967); Kirby v. Illinois, 406 U.S. 682 (1972): Manson v. Brathwaite, 432 U.S. 98 (1977); Foster
v. California, 394 U.S. 440 ( 1969); but see, Gilbert v. California, 388 U.S. 263 (1967). See
also State v. Ramirez, 817 P.2d 774 (Utah 1991). See Eyewitness Misidentification.
Motion to Exclude Expert Opinion Testimony - ( 1 - sexual assault case), (2 - CCJA Expert
Testimony)
Motion to Exclude DNA - (1)
Motion to Exclude Handwriting, Hair, and Fiber Evidence - (1)
Motion to Exclude Cooperating Witness Testimony and Request for Reliability Hearing -
(1)
Motion for In-Court Lineup - Moore v. Illinois, 434 U.S. 220 (1977).
Motion for Separate Hearing on Entrapment as a Matter of Law - United States v. Russell,
411 U.S. 423 (1973); Jacobson v. United States, 503 U.S. 540 (1992) On the use of informants, see
alsoLewis v. United States, 385 U.S. 206 (1966); Hoffa v. United States, 385 U.S. 293 (1966)
Motion for Hearing on Admissibility for Impeachment Under Rule 609 FRE or TRE of
Defendant's Alleged Prior Convictions
Motion in Sexual Assault Case to Admit Evidence of Prior Sexual Conduct of
Complainant - (1)
Motions Regarding Capital Cases - See Gregg v. Georgia, 428 U.S. 153 (1976) holding that
death as a punishment for crime is not in and of itself a violation of the Eighth Amendment); Coker
v. Georgia, 433 U.S. 584 (1977) holding that a death sentence for certain crimes, e.g., rape of adult
female, is grossly disproportionate and excessive punishment under the Eighth Amendment
prohibition against cruel and unusual punishment; Woodson v. North Carolina, 428 U.S. 280 (1976)
holding that a mandatory death sentence for every person convicted of first-degree murder
violates Eighth Amendment Lockett v. Ohio, 438 U.S. 586 (1978) holding that the defense has the
right during the punishment phase of capital trial to put on any mitigating evidence concerning
circumstances of crime and his/her character; also, aggravating circumstances must be expressly
contained in statute; Godfrey v. Georgia, 446 U.S.420 (1980) holding that when an aggravating
circumstance is vague and overly broad, the Eighth Amendment is violated; Walton v. Arizona , 497
U.S. 639 (1990) holding that a death sentence passes constitutional muster when the aggravating
circumstance was that the murder was "specially heinous, cruel or depraved"; Blystone v.
Pennsylvania, 494 U.S. 299 (1990) holding that mandatory death when jury finds present one
aggravating circumstance and no mitigating circumstances does not violate Eighth
Amendment; McCoy v. North Carolina, 494 U.S. 433 (1990) holding that the requirement that jury
cannot consider any mitigating circumstance unless itunanimously finds it to exist violates the
Eighth Amendment; Rompilla v. Beard, 545 U.S. 374 (2005) holding that defense lawyer bound to
make reasonable efforts to obtain and review material that counsel knows the prosecution will
probably rely on as evidence of aggravation at sentencing phase of a death penalty case,
notwithstanding that the capital defendant and his family members have suggested that no
mitigating evidence exists.
Motion that the Court Make Findings or Fact and Conclusions of Law at Contested
Hearing Where Facts and/or Law Are at Issue
Motion to Prevent Proof of Defendant's Prior Convictions Under the Balancing Test of
Rule 609 TRE; Rule 609 FRE
Motion to Require the Opposition to Have Statements of Its Witnesses Available at
Hearing and Trial for Inspection Prior to Cross-Examination of Such Witnesses - Rule 615
TRE; Jencks Act, 18 U.S.C. Section 3500 (federal)
Motion to Compel the Government to Produce Statements of Government Witnesses for
Discovery and Inspection Prior to Defense Cross-Examination of Each Such Witness -
Rule 615 TRE (Texas); Rule 26.2 F.R.Crim.P. and Jencks Act 18 U.S.C. Section 3500) (federal); Tip:
Defenders should remember to ask that the prosecution produce any qualifying statement that the
complaining witness made to the Victim's Advocate Office associated with the prosecutor's office.
Motion to Compel Prosecution to Submit Written or Recorded Statements of
Government Witness for an En Camera Review by the Court to Determine Whether
Witness Statement Should Be Produced for Discovery and Inspection
Defendant's Offer to Stipulate to Facts Where Witness Testimony Regarding Such Facts
Would Present Unfairly Prejudicial Aspects of Testimony that Outweigh Its Probative
Value - See Rule 403 TRE and FRE403; Old Chief v. United States, 519 U.S. 172 (1997) (1).
Motion to Permit Accused to Appear in Court at Trial and other Public Hearings Dressed
in Civilian Clothes and Without Shackles or Other Restraints -See Holbrook v. Flynn, 475
U.S. 522 (1985) holding that the use of special courtroom security arrangement involving having
uniformed security personnel sit in the first row of courtroom spectator section did not entail the
inherent prejudice of binding and gagging; Deck v. Missouri, 544 U.S. 622 (2005) holding that
where a court, without adequate explanation, orders the defendant to wear shackles - leg irons,
handcuffs and a belly chain - that will be seen by jury at the punishment phase of his capital trial,
the defendant need not demonstrate actual prejudice to make out a due process claim; Illinois
v.Allen, 397 U.S. 337 (1970) holding that an obstreperous, disruptive defendant may lose rights,
including right to be be present during trial, but due process under the Fifth and Fourteenth
Amendments requires that shackling and gagging should be tried only as a last resort due to the
impact on the presumption of innocence, the right to communicate with counsel, and the necessity
of an appearance of dignity in the judicial process.
Motion to Prevent the Involuntary Medication of the Accused During Trial - Riggins v.
Nevada, 504 U.S. 127 (1992).
Motion for Speedy Trial - Doggett v. United States, 505 US 647 (1992); Barker v. Wingo, 407
U.S. 514 (1972) detailing the four factor test: (1) length of the delay, (2) reason for the delay, (3)
the defendant's assertion of his right, and (4) prejudice to the defendant; Klopfer v. North Carolina,
386 U.S. 213 (1967). Note: There may be a speedy trial statute in your jurisdiction, see, for
example, The Federal Speedy Trial Act, 18 USC Section 3161-3174.
Motion for Continuance Before Trial Has Begun - Articles 29.03 - 29.09 CCP.
Motion for Continuance After Trial Has Begun - Article 29.13 CCP.
Motion to Require Transcription of Testimony from Pretrial Hearing in Case at Bar for
Use As Extrinsic Evidence of Prior Inconsistent Statements at Trial of Case at Bar
Motion to Require Transcription of Defendant's Prior Trial for Offense At Bar
Motion to Transcribe Prior Sworn Testimony of Co-Defendant in Co-Defendant's Severed
Trial for Offense At Bar
Motion for a Separate Jury for a Defendant Who is Forced to Be Tried with a Co-
Defendant
Motion Challenging the Array of Jurors
Motion for Special Venire
Motion for Instructions to the Panel of Prospective Jurors Prior to Commencement of
Lawyer Questioning
Motion for Instructions to the Panel of Jurors Selected for the Case
Motion for List of Jurors
Motion for Jury Questionnaire See Jury Selection.
Motion that the Court Retain the Completed Jury Questionnaires as Part of the Record
of the Case See Jury Selection.
Motion for Random Selection (Shuffle) of Names of Jurors Selected from Members of
General Panel or Panel for the Case - Article 35.11 CCP. See Jury Selection
Motion for Information Concerning Prospective Juror's Criminal History Accessible Only
to and Accessed by the Prosecution from Government Controlled Restricted Sources
Including the National Crime Information Center (NCIC) See Jury Selection.
Motion Requesting that Challenges for Cause Be Made at the Bench with Individual
Follow-Up Questions of Questionable Prospective Jurors at the Conclusion of General
Questioning of the Panel See Jury Selection.
Motion for Additional Peremptory Challenges See Jury Selection.
Motion Challenging the Seating of the Jury Due to Improper Use of Peremptory
Challenges Based On Race and/or Gender - Batson v. Kentucky, 476 U.S. 79
(1986); Hernandez v. New York, 500 U.S. 352 (1991); Purkett v. Elem, 514 U.S. 765
(1995); Edmonson v. Leesville Concrete Company, 500 U.S. 614 (1991); J.E.B. v. Alabama ex rel
T.B, 511 U.S. 127 (1994) (gender);Georgia v. McCollum, 506 U.S. 42 (1992); Powers v. Ohio, 499
U.S. 400 (1991); Campbell v. Louisiana, 523 U.S. 392 (1998); Johnson v. California, 543 U.S. 499
(2005); Miller-El v. Dretke, 545 U.S. 231 (2005); See Jury Selection for further explanation of the
cases and strategic advice.
Motion Prior to Opening Statement to Require Counsel to Request and Obtain Court
Approval Before Introducing Topics That May Have A Significant Potential for Unfair
Prejudice - This might include evidence of prior convictions, uncharged misconduct, character,
privileged communication, the defendant's silence, invocation of constitutional rights, an unkept
promise that the accused will testify in his own behalf and tell the jury certain facts, etc
Motion for Attachment of Witness Who Has Failed to Appear in Response to Duly Served
Subpoena - Article 24.12 CCP
Application for Court Grant of Qualified Testimonial (or Transactional) Immunity for
Defense Witness (1 - Fifth Amendment) Kastigar v. United States, 406 U.S. 441 (1972)
government may compel grand jury testimony from witnesses over Fifth Amendment objections if
the witnesses receive "use and derivative use immunity"; Uniformed Sanitation Men Assn., Inc. v.
Commissioner of Sanitation of City of New York, 392 U.S. 280 (1968) allowing the government to
use economic compulsion to secure statements but ony if the government grants appropriate
immunity
Motion to Allow Jurors to Take Notes
Motion Invoking the Rule of Witnesses
Request to Excuse Witness from Application of the Rule of Witnesses and Sequestration
Motion to Require Witness Who Has Been Excused from the Rule of Witnesses and
Sequestration to Prepare and File with the Court Prior to Testifying a Written Statement
of His Factual Knowledge of the Case in Order to Prevent or Reveal Any Tailoring of
Testimony Based on Factual Evidence the Witness Hears from the Witness Stand Before
Testifying - See Beloof et al, The Crime Victim's Right to Attend the Trial: The Reascendant
National Consensus, 1 Lewis & Clark L. Rev. 481 (2005).
Motion to Require the Complaining Witness (or Other Witness) Who Has Been Excused
from Application of Rule of Witnesses and Sequestration to Be Required to Be the
Prosecution's First Fact Witness
Motion for Voir Dire Examination of Opposition's Expert Witness Prior to the Admission
into Evidence of Any Expert Opinion Testimony from Such Witness or Underlying Facts
or Data Upon Which Such Opinion May Be Based
Motion for Hearing to Determine Competency of Opposition's Witness to Testify as an
Expert
Motion for Hearing to Determine the Competency of Opposition's Character Witnesses
and the Admissibility of Character Testimony on Specific Traits of the Accused, the
Witnesses, and /or the Complainant
Motion to Conduct Arraignment of Accused Out of the Jury's Presence
Motion in Limine* to Prevent Speaking Objections and Argument on Objections by
Counsel in the Presence of the Jury. * Note: In Limine in Latin means "at the beginning" or "on
the threshold." It is often attached to the title of motions that ask the trial court to make a
preliminary ruling barring the opposition from engaging in specific conduct or inquiring about
specific subjects, unless opposing counsel approaches the bench and notifies the court and counsel
that s/he then intends to engage in the conduct or inquire about the subject.]
Motion to Prevent Counsel from Displaying to the Jury and Any Witness from Testifying
to the Contents of Any Exhibits, not Previously Preadmitted, Unless and Until Such
Exhibits are Received in Evidence
Motion Requesting the Trial Court to Refrain from Commenting in the Jury's Presence on
the Weight and/or Credibility of the Evidence or Otherwise Indicating the Trial Court's
Opinion of the Evidence Presented to the Jury - ABA Standards - Special Functions of the Trial
Judge (1999).
Motion to Prevent the Trial Court from Questioning Any Witness in the Presence of the
Jury (Add if appropriate: Unless the Trial Court Has Both Advised Counsel of the Trial Court's Belief
that Further Questioning Should Take Place and Provided Counsel with the Opportunity to Put Such
Questions to the Witness )
Motion for Jury View of Scene
Motion to Prevent the Trial Court from Admonishing Defense Witnesses in Unnecessarily
Strong Terms Regarding the Witnesses' Right to Refuse to Testify - Webb v. Texas, 409
U.S. 95 (1972).
Motion to Limit Prosecution's Jury Argument - United States v. Young, 470 U.S. 1
(1985): Darden v. Wainwright, 477 U.S. 168 (1986). See also Objections to Jury Argument for a
long list of potential objection to the opponent's jury argument.
Objections to the Trial Court's Written Instructions to the Jury - Article 36.14 CCP.
Motion that the Trial Court Give Requested Special Written Instructions - Article 36.15 CCP
Motion that the Jurors Be Permitted to Have a Written Copy of the Court's Jury
Instructions for Use While Deliberating - [Editorial Comment: Several states, notably South
Carolina and New Jersey, follow an anachronistic practice of denying trial jurors access to a written
copy of the court's instructions; I recently listened to a South Carolina judge in a robbery -murder
case read from written instructions for well over half an hour; the legally trained and experienced
judge was clearly unable to recite any of the instructions from memory; yet the lawmakers of South
Carolina apparently expect each group of jurors, totally untrained in the law, to remember the
intricacies and nuances of the copious instructions that they only hear orally in criminal cases;
sorry, but this shameful practice defies reason.]
Motion that Each Juror Be Provided with a Written Copy of the Court's Instructions to
the Jury
Motion to Reopen for Additional Testimony After Resting
Motion for Instructed (Directed) Verdict of Not Guilty [Note: This motion can be made at the
conclusion of the prosecution's case-in-chief. Concerning the issue of sufficiency of the evidence to
support conviction, the trial court does not substitute its judgment for that of the jury. Instead, the
issue for the trial judge is whether there is sufficient evidence upon which a rational
jury could decide that the prosecution proved the allegation beyond a reasonable doubt. Even
though the trial judge might have granted the motion on the same evidence at a bench trial, the
motion for instructed (directed) verdict conviction will be properly denied on the sufficiency of the
evidence issue if a rational jury couldhave found proof of guilt beyond a reasonable doubt. The
same standard is used on appeal after conviction when sufficiency if the evidence is the issue.]
Motion that Admitted Exhibits of Real Evidence Be Sent into the Jury Room Before Jurors
Begin Their Deliberations
Motion to Prevent (or Allow) the Jury from Having Access During Deliberations to
Demonstrative Evidence Introduced Solely to Assist the Fact-Finder in Understanding
Witnesses' Testimony
Motion to Prevent the Court from Appointing a Jury Foreperson (1 - Horwitz, Mixed Signals
and Subtle Cues: Jury Independence and Judicial Appointment of the Jury Foreperson, 54 Catholic
Univ. Law Rev. 829 (2005))
Motion That the Court Refrain from Unduly Coercing the Jury to Reach a Verdict - Jenkins
v. United States, 380 U.S. 445 (1965)
Motion to Sequester and Prevent Deliberating Jurors from Separating
Motion for Hearing on Whether the Court Should Allow Substitution of Alternate Juror
After Deliberations Have Begun
Motion to Suspend Jury Deliberations Pending the Return of Temporarily Incapacitated
Juror
Motion to Permit Reading of Certain Testimony in Response to the Jury's Request
Motion to Poll Jurors to Determine If They Are Hopelessly Deadlocked
Motion to Prevent the Court from Inquiring As to the Numerical Division of Jurors Who
Have Been Unable to Agree Upon a Verdict
Motion to Prevent the Court from Suggesting to the Jury that the Court Will Keep the
Jury Deliberating Until It Reaches a Verdict
Motion to Set Aside Verdict(s) of Conviction on the Ground that It (They) Is (Are)
Inconsistent with Verdicts of Acquittal But see Yeager v. United States, __U.S. __, 129 S. Ct.
2360 (2009)
Motion for Instructions to Jurors After the Verdict
Motion By Defense Counsel for Leave to Interview Jurors After the Verdict
Motion to Prevent the Jurors from Talking to Representatives of the News Media
Pending Retrial After a Mistrial Has Been Declared Due to a Hung Jury - See State
v. Neulander, 801 A.2d 255 (NJ 2002), cert denied 123 S. Ct. 1281 (2003); ABA Standards - Fair
Trial & Free Press (1992).
Motion to Prevent the Sentencing Court from Relying on Any Sentencing Guideline
Enhancement that Requires the Finding of a Fact Not Placed Before the Jury as an
Element of the Offense -For those (not TX.) in sentencing guideline jurisdictions, Blakely v.
Washington, 542 U.S. 296 (2004), based on the Apprendi/Ring rule, suggests that a sentencing
guideline enhancement, other than a recidivist, e.g. prior conviction, fact, that requires the finding
of a fact not placed before the trial jury as an element of the offense for which the convicted
defendant is being sentenced is violative of the Sixth Amendment right to trial by jury, the right to
due process of law, and, in jurisdictions, e.g., federal and TX., that provide for a right to
indictment, the right to indictment by a grand jury. The holding appears to apply to sentencing
guidelines that vest the judge with the power to enhance (increase) a sentence upon finding of
some additional fact, other than a prior conviction, where the sentencing scheme fails to require
that the enhancement fact be proved to a jury beyond a reasonable doubt. The issue before the
court in Blakely was "Whether a fact (other than a prior conviction) necessary for an upward
departure from a statutory standard sentencing range must be proved according to the procedures
mandated by Apprendi v. New Jersey, 530 U.S. 466 (2000) holding that with the exception of prior
convictions, any fact that increases sentence beyond the statutory maximum for the offense of
conviction must be proven beyond a reasonable doubt and Ring v. Arizona , 536 U.S. 584 (2002)
holding that it violates Apprendi for the sentencing judge without a jury in a capital case to find an
aggravating circumstance required for imposition of the death penalty. Ring is not retroactive.
SeeSchriro v. Summerlin, 542 U.S. 348 (2004).) Under Blakely the maximum sentence that a judge
may impose on the defendant is capped by the facts found by a jury or admitted by the defendant.
For more information, see (1), (2), (3), (4), (5), (6). For the DOJ memo (1). For a free analysis
of Blakely by theVera Foundation. For Circuit cases holding that Blakely guts all or part of the
Federal Sentencing Guidelines, see United States v. Booker, 375 F. 3d 508 (7th Cir. 2004); United
States v. Ameline, 376 F.3d 967 (9th Cir. 2004). See also, King & Klein, Beyond Blakely, 16 Federal
Sentencing Reporter (Fee) (June 2004); Berman, Douglas, Conceptualizing Blakely, Federal
Sentencing Reporter (December 2004); The Ohio State Journal of Criminal Law Symposium. See
also Washington v. Recuenco, 548 U.S. 212 (2006) indicating that a harmless error review is
permissible in cases on appeal when Blakely was decided. United States v. Booker and United
States v. Fanfan, shed even more light on Blakely. These cases raised the issue whether it is
unconstitutional for a federal judge to impose an enhanced sentence, and, if so, whether the United
States Sentencing Guidelines are void entoto. Note: On 1-12-05, the U.S.S.C. in United States
v. Booker, 543 U.S. 220 (2005) and United States v. Fanfan held 5-4 in an opinion by Justice
Stevens and relying on Blakely that the U.S. Sentencing Guidelines authorization of sentence
enhancements based on facts found by the sentencing judge, rather than by a jury or admitted by
the defendant violates the Sixth Amendment right to jury trial and that statutory provisions that
require federal judges to apply the guidelines when sentencing offenders must be severed from the
federal sentencing scheme. If a particular fact is essential to the defendant's punishment, the
defendant is entitled under the Sixth Amendment right to trial by jury to have a jury finding on the
existence of such fact. The Booker - Fanfan court held that sentences prescribed by the U.S.
Sentencing Guidelines are advisory only and federal judges may impose other sentences based on
sentencing factors contained in 18 U.S.C.3553(a). The U.S.S.C. indicated that the U.S. Sentencing
Commission can continue its work; federal judges are directed to consult the Guidelines in
exercising their sentencing discretion, but they appear to be free to consider other factors. So the
Guideline calculation is supplied to the sentencing judge but the weight, if any, that federal judges
give to the Guidelines in determining the appropriate sentence to impose is now discretionary. For
in-depth analysis of Booker- Fanfan, and breaking developments, go to the federal defender
Booker- Fanfan site and then to the Berman Blawg. See also United States v. Mares, 402 F.3d 511
(5th Cir. 2005). Try this terrific resource for a treasure trove of information about guideline
sentencing. See also (1), (2), (3 - a symposium on Booker), (4 - latest Booker-Fanfan cases).
In Cunningham v. California, 549 U.S. 270 (2007), with Alito and Roberts aboard, the determinate
sentencing system of California was struck down. Rita v. United States, 551 U.S. 338 (2007) upheld
the presumption of reasonableness in appellate review of sentences falling within the presumptive
range of the Federal Sentencing Guidelines. For basic constitutional law cases dealing with the
Sixth Amendment right to trial by jury, see Jury Selection. In Burton v. Stewart, 549 U.S. 147 (2007)
the U.S.S.C. left the question of the retroactivity of Booker unanswered. In Kimbrough v. United
States, 552 U.S. 85 (2007) and Gall v. United States, 552 U.S. 38 (2007), the U.S.S.C. determined
respectively that the sentencing authority had discretion to deviate from the advisory Guidelines
because it disagreed with the 100-to-1 weight disparity of sentencing between crack and powder
cocaine and that the sentencing authority did not have to demonstrate extraordinary
circumstances to impose a sentence below the advisory guideline range, the issue for the appellate
court being whether the sentence was reasonable under a deferential abuse-of-discretion standard.
It would seem after Kimbrough and Gall that the sentencing judge in a federal criminal case is still
required to calculate the sentencing range under the Guidelines and consider the range in
determining what a reasonable sentence would be, even though the judge eventually decides that
the Guideline range is not reasonable for the defendant in question.
Motion to Prevent Sentence Based in Whole or Part on Evidence of Any Prior Conviction
that Is Not Alleged in the Charging Instrument and Proved Beyond a Reasonable
Doubt - Shephard v. United States, 544 U.S. 13 (2005).