| Chapter
8
Covering
Criminal Courts
By Maurice
Possley
Motions
A variety of motions may be filed before trial. High profile cases—such
as the prosecution of Oklahoma City bomber Timothy McVeigh or the murder prosecution
of O.J. Simpson—are good examples of cases where a blizzard of motions
was filed. Arguments and rulings by judges on each motion may produce individual
stories that help readers or listeners understand how a case is unfolding and
is being shaped for trial. Further, many motions may contain attachments such
as police reports, crime laboratory reports, grand jury transcripts, and other
information that would not otherwise be publicly disclosed prior to trial. All
of these motions potentially can generate news stories, particularly those motions
that potentially can change the location of the trial, the dismissal of some
or all of the charges, or the suppression of evidence.
Motions – oral and written – can also reveal bigger
issues or problems with system itself. Controversies over use of
paid informants, jailhouse snitches, scandals in crime laboratories,
and the use of torture to exact confessions from murder suspects
are all examples of stories that emerged by studying these motions
carefully.
Motions may include:
--Change of venue: This is a motion to shift
the trial to another judge or to another jurisdiction due to perceived
bias by a judge or jurors. There may be a motion to select a jury
from another jurisdiction and bring that jury back to the original
courthouse for trial.
--Gag orders: These can take many forms, all
designed to limit public exposure. There can be motions to close
a proceeding, to bar prosecutors or defense lawyers from speaking
to the press or from speaking about the case in public, or to put
under seal certain documents. It is up to reporters to object to
such limitations and to seek guidance from editors and legal counsel
for their organizations on whether to seek to intervene and oppose
such motions. The term “gag order” is a media phrase
that is applied generally to what judges and lawyers often call
a “protective order.” Judges have been known to institute
them on their own if they believe lawyers—defense or prosecution—are
spending too much time trying their cases in the media instead
of the courtroom. Typically, however, such orders are requested
by either the prosecution or the defense.
--Postponements: These can be routine continuance
motions or more significant motions requesting delays due to pre-trial
publicity or late disclosure of documents or belated discovery
of new evidence by defense lawyers or prosecutors.
--Bond: A defendant may file a motion to reduce
the bond, or the prosecution may move to increase it.
--Dismissal: Defense lawyers may file motions
seeking to dismiss some or all of the charges.
--Subpoenas: Motions may be filed to block subpoenas
for evidence or witnesses. Defense lawyers may file motions requesting
issuance of subpoenas for certain evidence or witnesses.
--Severance: In cases with multiple defendants,
motions for separate trials may be filed. These motions may reveal
trial strategy and crucial prosecution evidence—such as the
existence of statements/confessions made by defendants implicating
co-defendants.
--Forensics: Motions challenging crime laboratory
reports may be filed. There may be motions filed by prosecutors
requesting that defendants provide hair or blood samples or fingerprints.
There may be motions filed by defense lawyers seeking independent
testing of evidence. Beginning in the 1990s, the U.S. Supreme Court
sought to impose greater scientific rigor on forensic testimony.
In a defining 1993 decision, Daubert vs. Merrell Dow Pharmaceuticals,
the court demanded that such testimony not simply meet the existing
standard of “general acceptance” in its field, but
also address some of the hallmarks of scientific inquiry—testing,
peer review, and rates of error.
--Depositions: In some jurisdictions and/or in
some prosecutions, such as death penalty cases, certain witnesses,
such as jailhouse snitches, may be questioned under oath before
trial. Motions may be filed seeking to interview under oath—also
known as taking a deposition—other witnesses or to block
such depositions.
--Production of Evidence: Defense attorneys will
almost always file a motion seeking “Brady material,” which
is exculpatory evidence that could possibly indicate that the defendant
is not guilty. For example, any evidence, including tips to police,
of other possible suspects, is considered Brady material,
which is named after the Supreme Court case Brady v. U.S.
--Mental competency: There may be motions seeking
psychiatric examinations of defendants as well as motions seeking
hearings on the mental competency of the accused.
--Suppression: There may be motions challenging
a confession or inculpatory statement—an admission of involvement
or guilt. These motions may result in a pre-trial hearing on whether
a suspect was properly questioned by law enforcement, whether a
statement/confession was voluntarily and lawfully obtained, or
whether a statement will be allowed into evidence at trial. There
also may be motions to suppress—or keep out of evidence—statements
from witnesses, physical evidence seized by police during their
investigation, or past crimes by defendants.
--Other evidence: Prosecutors may file motions
seeking to introduce evidence of other crimes committed by the
accused—whether those crimes have been charged or not.
--Proffers: From time to time, prosecutors may
file or be required to file proffers of some of their evidence—particularly
in cases where a conspiracy is charged—that includes co-conspirator
statements. A proffer is the prosecution’s outline of the
anticipated state’s evidence. One of the most enlightening
documents that prosecutors may file in a federal case is called
a Santiago proffer, in which the government lays out the bulk of
its case, often connecting the dots among alleged co-conspirators,
offering motives and details, and explaining what witnesses are
expected to say at trial. Remember that this is the view of the
prosecution without the benefit of any cross-examination. In Chicago
in 2004, prosecutors in the conspiracy case against former Illinois
Gov. George Ryan sought to file such a proffer under seal, arguing
that the potential jury pool would be tainted by its publication.
After Chicago Tribune lawyers opposed the bid to file it under
seal, a federal judge ordered it made public.
--Jury selection: Motions may be filed challenging
the selection of the grand jury or the trial jury. These motions
primarily focus on the composition of the jury venire, which is
the pool from which jurors are selected. The U.S. Supreme Court
has declared that jury venires must be a “representative
cross-section of the community.” Lawyers will frequently
challenge the composition of the pool if certain demographic segments
of the community –Latinos, African-Americans, women, young
adults – are under-represented in the jury pool compared
to their percentages in the local community. There may be motions
to sequester the trial jury, to select it from another jurisdiction
or to conduct the questioning of prospective jurors individually
and behind closed doors.
--Legal representation and financing: There may
be motions to allow the defendant to proceed “pro se,” that
is, without a lawyer. There may be motions seeking court-authorized
payment—using public funds—to hire experts, additional
lawyers, or investigators or to pay for independent testing of
evidence.
Continue
to the next page in "Chapter 8: Covering Criminal Courts" >>>
<<< Return to the previous
page in "Chapter
8: Covering Criminal Courts"
|
