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This article consists of three parts: pre-trial discovery requests; discovery motions based on compulsory process; and motions in limine (both productive and prohibitive). Each part is preceded by a synopsis of legal principles upon which many of the included motions are based. Additionally, you will find many case quotes and citations that provide for the basic principles of obtaining information and presenting it at trial.
The following information is delivered with the hopes that it will encourage the readers to think outside the box. By no means are the included motions exhaustive. In fact, simpler motions, such as standard motions to suppress, have been left out as they are fairly state-specific.
Under the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution, criminal prosecutions must comport with principles of fundamental fairness. The U.S. Supreme Court has long interpreted this standard of fairness to require that criminal defendants be afforded a meaningful opportunity to present a complete defense. To safeguard that right, the Supreme Court has developed “what might loosely be called the area of constitutionally guaranteed access to evidence.” United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982). These constitutional privileges require that the prosecution deliver exculpatory evidence into the hands of the accused, thereby protecting the innocent from erroneous conviction and ensuring the integrity of our criminal justice system. California v. Trombetta, 467 U.S. 479, 104 S. Ct. 2528, 81 L. Ed. 2d 413, 1984 U.S. LEXIS 103, 52 U.S.L.W. 4744 (1984).
A defendant has a constitutionally protected privilege to request and obtain from the prosecution evidence that is either material to the guilt of the defendant or relevant to the punishment to be imposed. Brady v. Maryland, 373 U.S. 83, 87 (1963). Even in the absence of a specific request, the prosecution has a constitutional duty to turn over exculpatory evidence that is material, i.e., that would raise a reasonable doubt about the defendant’s guilt. United States v. Agurs, 427 U.S. 97, 112 (1976).
In California v. Trombetta, the defendant challenged his drunk driving conviction on the grounds the police had not preserved his breath sample so that it could be independently tested. The Supreme Court held that the state’s duty to preserve evidence is limited to evidence that might be expected to play a significant role in the suspect’s defense. To meet this standard of constitutional materiality, the evidence must both possess an exculpatory value that was apparent before the evidence was destroyed and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. Neither of these conditions was met. According to the Supreme Court, the evidence was unlikely to be exculpatory because the procedures followed in running the breath test rendered the results reliable. And the defendant had other means to demonstrate innocence. Under California law, driving-under-the-influence defendants have the opportunity to inspect the machine and its weekly calibration results and the breath samples used in the calibrations. This data could be used to impeach the machine’s reliability.
I cannot stress enough the importance of diligent use of discovery to obtain evidence that can be used to impeach breath, blood or urine test results. In the past couple of years, experts and attorneys alike have found that prosecutors or state experts hide data regarding underlying software, faulty error messages and inaccurate test results. Labs in Missouri, Wisconsin and the Los Angeles County Sheriff’s Department have done this. In Arizona, hundreds of cases were dismissed because of this type of evidence concealment.
According to the Sixth Amendment, in all criminal prosecutions, the accused shall enjoy the right to have compulsory process for obtaining witnesses in his favor. The Compulsory Process Clause, made applicable to state prosecutions by the Fourteenth Amendment, provides a basis for requesting the court to issue subpoenas for various documents and other evidence not available through other means.
It will be especially hard for the prosecution to argue against such subpoenas given the relatively limited amount of case law on the subject. The Supreme Court discussed the relative lack of case law in this area in Pennsylvania v. Ritchie, 480 U.S. 39, 56-57 (1987), in which defendant Ritchie sought a new trial and access to confidential reports from the local child protection agency to aid in his defense on charges of child molestation:
This Court has never squarely held that the Compulsory Process Clause guarantees the right to discover the identity of witnesses, or to require the government to produce exculpatory evidence. But cf. United States v. Nixon, 418 U.S. 683, 709, 711 (1974) (suggesting that the Clause may require the production of evidence). Instead, the Court traditionally has evaluated claims such as those raised by [the defendant] under the broader protections of the Due Process Clause of the Fourteenth Amendment.
See United States v. Bagley, 473 U.S. 667 (1985);Brady v. Maryland, 373 U.S. 83 (1963). See also Wardius v. Oregon, 412 U.S. 470 (1973).
Ultimately, the Supreme Court chose to adopt a due process analysis for purposes of the Ritchie case and deferred deciding whether and how the guarantees of the Compulsory Process Clause differ from those of the Fourteenth Amendment (480 U.S. 39, 57). Under that analysis, the court decided that the defendant was entitled to have the file reviewed by the trial court to determine whether it contained information that probably would have changed the outcome of his trial.
Using these principles, you can issue or have the court issue, depending on your local rules, a subpoena duces tecum for the officer’s Field Sobriety Test Training Manual; operator, maintenance and user manuals for the chemical tests (whether breath, blood or urine, and whether for drugs or alcohol); 911 tapes and anything else you would like.
Under the American system of jurisprudence, an individual who comes into contact with law enforcement or the criminal justice system has a number of well-defined rights. These rights can be found in the explicit language of the Bill of Rights (e.g., the Fourth Amendment’s prohibition against unreasonable search and seizure, the Fifth Amendment’s protection against self-incrimination, and the Sixth Amendment’s guarantee of counsel, the right to confront adverse witnesses and the right to compulsory process). They also can be found in the case law interpreting and defining these rights. This concept of protection of the accused has been summed up in a number of decisions by the Supreme Court as fundamental due process.
Through the Fourteenth Amendment, due process is applicable not just to federal cases, but to state procedures and prosecutions as well. These cases have established that an accused has certain fundamental rights that he or she must be afforded prior to a loss of liberty imposed by the government. These fundamental rights of due process are so significant that they supersede any other law that might interfere with their full enjoyment.
An essential component of procedural fairness is an opportunity to be heard. In re Oliver, 333 U.S. 257, 273 (1948); Grannis v. Ordean, 234 U.S. 385, 394 (1914). This right is so fundamentally important that it has been used by the Supreme Court to overturn a variety of state laws.
Few other rights are as important as the right for an accused to present his or her side of the story. In defending this right, even evidentiary rules have been struck down. See, e.g., Webb v. Texas, 409 U.S. 95 (1972) (trial court’s extended admonition to petitioner’s only witness to refrain from lying, coupled with threats of dire consequences if witness did lie, effectively discouraged the witness from testifying at all and deprived petitioner of due process by denying him the opportunity to present witnesses in his own defense); Washington v. Texas, 388 U.S. 14, 19 (1967) (state statutes that permitted co-participant in crime to testify for prosecution, but not for defense, denied defendant right to material testimony of a witness, and thus denied defendant right to compulsory process for obtaining witnesses in his favor); Chambers v. Mississippi, 410 U.S. 284 (1973) (murder defendant was denied due process by evidence rule that prohibited him from cross-examining his own witness who had confessed the murder to third persons and by trial court’s refusal to allow hearsay statements of the third persons regarding witness’ confession).
If we combine these foundational concepts with dedication and mix in a little creativity, we can come up with motions in limine that are effective in both getting evidence admitted and keeping the prosecution’s evidence out. (SeeDefendant’s Motion in Limine [§1:31]). In DUI cases, it can be argued that the defendant is merely seeking to defend himself by presenting easily obtainable, non-privileged and highly relevant evidence. On the other hand, the State is seeking to prevent it based not on any constitutional argument, or even any evidentiary objection, but merely on an argument of convenience. Therefore, given the constitutional rights involved, as specifically stated in the Bill of Rights and as interpreted by the wealth of U.S. Supreme Court cases, the court can have little doubt that the evidence should be provided.
Memorandum in Support of Defendant’s Motion in Limine to Introduce Partition Ratio Evidence [§1:41]. The partition ratio is the relationship of alcohol in the breath to alcohol in the blood. Evidence of individual variations in partition ratios isn’t admissible in all jurisdictions. Originally, state per se statutes were phrased in terms of blood-alcohol levels so breath machines had to convert the results to blood-alcohol levels. They do that by multiplying the breath-alcohol results by 2,100, even though some individuals have lower (and higher) conversion ratios and an individual’s partition ratio varies depending on food consumption and other factors. Thus, evidence of variation in partition ratios was admissible to show that breath tests don’t accurately measure blood-alcohol levels.
Many jurisdictions then circumvented the need for partition ratios by amending their statutes to provide that driving with a specific level of breath alcohol was an offense. As a result, their courts refused to admit partition ratio evidence, ruling that the evidence violated the legislative intent to create a specific breath limit. See, e.g., People v. Bransford, 884 P.2d 70 (Cal. 1995) (testimony of defendant’s individual partition ratio was inadmissible, especially when the defendant exhibited clear signs of being under the influence of alcohol); Burks v. State, 394 S.E.2d 136, 137 (Ga. Ct. App. 1990) (testimony of a defendant’s individual partition ratio of 1,680:1 on the day before trial was inadmissible when the defendant exhibited other visible signs of intoxication).
However, this concept is losing favor and can be overcome as outlined in this article. Admission of partition ratio evidence is important in borderline cases to build in a doubt as to the true blood-alcohol level as opposed to the stated breath-alcohol level. Additionally, it can be used to reduce a low breath result, say .09, to below .08, thereby eliminating any presumptions for the common law charge.
Memorandum in Support of Defendant’s Motion in Limine to Exclude Evidence of Tolerance [§1:51]. More and more often we see the prosecution seeking to introduce evidence of tolerance through its expert. The evidence often is introduced through general testimony regarding what tolerance is and how it would come into play in a DUI case. Tolerance evidence is intended to explain discrepancies between the defendant’s good performance on field sobriety tests or everyday activities, and his or her high breath, blood or urine test results (e.g., that at a .20, the defendant should be falling down). The idea is to leave the jury with the thought that the discrepancy is because the defendant is a chronic drinker who can hold his or her liquor and not because the chemical test results are wrong.
Memorandum in Support of Defendant’s Motion in Limine to Preclude Evidence of Retrograde Extrapolation [§1:61]. Retrograde extrapolation is a questionable process of looking at the chemical result at a specific time, say midnight, and predicting what the level would have been earlier, say at 10 p.m. This calculation is based on two major assumptions: first, that the person is eliminating alcohol (i.e., his or her blood-alcohol content is going down); and second, that the person is eliminating alcohol at a specific rate.
The second assumption is based on the very limited range of elimination for all people. That range is roughly .015 to .02 per hour. The first assumption is much more problematic. In order to know if the person is eliminating, one needs to know when the person started drinking, when the person finished drinking, the stomach contents and the person’s metabolism, just to name a few factors.
The prosecution likes to introduce retrograde extrapolation evidence because its expert always will opine that the defendant’s blood-alcohol level was higher at the time of driving than the chemical test results — it makes your client look drunker.
Memorandum in Support of Defendant’s Motion in Limine to Preclude Prosecutorial Misconduct [§1:71]. When you read tactics discussed, you probably will see things done to you that you either didn’t know were misconduct or didn’t have authority to use in objecting. If you did object and did have authority, the judge probably said it was done mistakenly and so only an admonition was necessary.
By filing this motion before trial, you are putting the prosecution on notice not to do any of these acts and, if they do, it should result in a mistrial since they were on notice. In this regard it’s a preemptive strike.
Memorandum in Support of Defendant’s Motion in Limine to Preclude Field Sobriety Test Evidence [§1:81]. For years the judiciary and the public have been led to believe that field sobriety tests are a great magic invention. They are not. In fact, more and more scientists are writing peer-reviewed articles on just how bad the research and science behind them is. In order to create records, and hopefully eventually get judges to understand how unreliable these tests can be, this motion lays out the bases on which hearings can be held.
Bruce Kapsack originated many of the DUI defense strategies used throughout the country and has worked or lectured with virtually every nationally known expert in the DUI arena. He is the author of “Innovative DUI Trial Tools” from which this article is excerpted.