MOTION PRACTICE CRIMINAL CASES

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IN

pretrial motion practice in criminal cases
Contents 8 Quik Tips Re Motion Practice Free Resources for Compiling a Bank of Useful Pretrial and Trial Motions Pretrial Motion Hearings - Practice Tips Sample Standard Pretrial and Trial Defense Motions
[If you are a neophyte to the practice of law, review the definition of legal motions; note that the definition includes pretrial motions and in limine motions but goes beyond both in its explanation. If you do not have access to a form book of motions, you may want to read the CCJA publication: Pretrial and Trial Motions in Criminal Cases. It contains several hundred sample motions, from the plain vanilla to the exotic, that you can easily tailor to your case. Note to Texas Law Students: If you wish to obtain a free diskette (in Word and WordPerfect) containing the text of over 40 basic/standard motions that are customarily filed by defenders in criminal cases in Texas state courts, contact the CCJA. ]

introduction
Pretrial motion practice is an important part of the overall pretrial preparation process that includes other components such as client interviewing and counseling, fact investigation,

witness interviewing, finding and selecting experts, brainstorming and developing a case theory, discovery, etc. Because of the much more limited discovery and deposition [Florida is a notable exception in that it has liberal allowance for defense depositions.] practice that is normally available in criminal vis a vis civil cases, defenders will often have to depend on motion practice to discover the prosecution's case and find out what its witness are about. Motion practice allows the defense to have an impact in shaping the substantive and procedural structure of the case.

eight quik tips re motion practice
Study and learn the rules of evidence, ethics, and procedure. The rules of the game are designed to ensure that the jury receives reliable evidence that respects individual rights belonging to accused (and sometimes to the accuser, e.g., rape shield laws).To conduct effective pretrial motion practice, defense counsel must know the applicable rules of procedure, ethics, and evidence. These rules are not picayune. They are the bricks of fair trial. If you want to be a true player in the game of courtroom warrior and win, you must master the rules. Mastering the rules means knowing how to apply them. As Confucius said,"The essence of knowledge is, having it, to apply it." Success in your pretrial motion practice is in the details. [Note: For an example of the sort of procedure one must know to engage in motion practice, allow me to refer to my own jurisdiction, Texas. In Texas, a trial court has discretion to invoke an Article 28.01 CCP pretrial hearing procedure by notifying the parties; this means that the court may set a pretrial hearing to determine the defendant's pleadings, exceptions to form and/or substance of the indictment, motions for continuances, motions to suppress evidence, motion for change of venue, motions for discovery, motions regarding entrapment, and motion for interpreter. If the trial court does invoke the Article 28.01 procedure, the defendant must file such motions at least seven days prior to the hearing date; in the absence of timely filing, such matters will not be permitted to be raised unless the defense shows good cause. Since the trial court need not consider certain matters filed outside the time frame, timely filing of pretrial motions is essential.. See Graham v. State, 769 S.W.2d 594 (Tex. App. - Corpus Christi - 1989); Bosley v. State, 414 S.W.2d 468 (Tex. Crim. App. 1967) cert. denied 389 U.S. 876 (1967). Another example would be the requirement in a suppression hearing based on an allegedly defective search warrant that the warrant be included in the appellate record. In short, become familiar with the numerous procedural default speedbumps that your jurisdiction has created for defenders seeking correct rulings on motions.] Don't file frivolous motions. You will lose the goodwill of the court and the opposition if you file unnecessary motions for purposes of harassment. Why infuriate the judge by wasting the court's time?There is a difference between being an offensive obstructionist and a zealous advocate Know the difference between stock and swank. There may be certain pretrial motions that you will file in every criminal case, e.g., request for notice from the prosecution of intent to introduce evidence of uncharged misconduct and prior convictions of the accused, discovery of names of witnesses, etc. Other motions will only be filed when you have a good faith belief that they are relevant and consistent with your case theory. This means that you will typically have to gather enough information to determine that the motion is appropriate. Avoid filing "boilerplate," "fill-in-the-blanks" motions. Boilerplate motions often contain language that is inconsistent with your case theory. Instead, learn how to write motions that are tailor-made for your case. Use your staff to save you time in drafting motions. Your support staff can save you a lot of time in preparing drafts of stock motions. Use a good document assembly system that allows your secretary or paralegal to do the lion's share of preparing the draft motions and other forms you will need for a case. If you develop a well organized set of functional questions to be answered in each case that comes into the office, the answers

to those questions will allow your secretary or paralegal to create preliminary drafts of many standard motions and other documents appropriate to the case. The extensive Law Office Management and Pretrial pages describe document assembly programs designed for criminal defense. These computer programs typically provide the basic forms. The publishing giants sell criminal form books in every jurisdiction. Check the form book out of your local law library and copy the motions. You can duplicate the basic forms and tailor them to your needs. If you are working on a shoestring, get a $29 copy of the book of motions and copy the several hundred motions onto your computer. Every criminal case is different, but many will involve the same legal issues. As the case develops, your secretary or paralegal should be able to draft a number of stock motions that you can review and edit. Of course, there will be times, e.g., complex cases, when you have to create unique motions. Always review every motion, stock or swank, before you file it. Use a checklist. Prepare yourself a checklist of all possible motions from which you can pick and choose in the individual case: See the list of +140 motions below. You can create and expand your checklist simply by looking at the table of contents of as many motion books, disks, or CDs as you can get your hands on. Start early: When should your start thinking about motions. Obviously, you don't wait until the day motions are due to be filed. Start a motion file in your pretrial practice notebook when you open the case. Jot down ideas. Determine your primary and secondary goals. In some cases you may know that the chances of having your motion granted are slim. Still, you may find it useful to proceed with the motion if it will accomplish other goals, e.g., as an opportunity to conduct the functional equivalent of a discovery deposition. For example, if a hearing with live witnesses is held, you will be able to examine opposition witnesses under oath. This can be useful in forcing the opposition witnesses to take a firm sworn position prior to trial and, also, in providing you with fruit for impeaching the witnesses with their prior inconsistent statements. Under the rules of evidence existing in many jurisdictions, the prior inconsistent statement given under oath in such hearings is also admissible for the truth of the matter stated, as an exemption from the hearsay rule. Another reason for going forward with a motion is to persuasively present your position to the court in the hope that the information you develop will have a favorable influence on the court's equitable exercise of discretion at future junctures in the case, even though the precise relief you seek by the motion may be refused or denied. . Decide upon the content of your motion. Once you have decided that a certain motion is appropriate, you have to decide upon its content. The client is paying for your legal research and writing skills. Polish them by constantly trying to be a better writer and grammarian (1) (2 -Legal Writing in Plain English), (3 - The Bluebook of Grammar and Punctuation) and a better legal researcher (1), (2). There are some standard motions that will have the same content, e.g., a motion that the court reporter be ordered to record all testimony including the jury voir dire, argument, and bench conferences. Because the request will be the same for each case, once you have this motion in your word processor, you will file it in every case with few changes other than the caption. Many pretrial motions must be customized for the particular case. Always carefully proofread your motions to be sure that you didn't any words out. (Yes, you read that last sentence correctly.)

free resources for compiling a bank of useful pretrial and trial motions
[For those who are inexperienced in motion practice, the CCJA offers an inexpensive monograph - Pretrial and Trial Motions in Criminal Cases - that contains guidance on how to write original motions. The monograph contains a couple of hundred sample motions that can

be used in defending criminal cases.] One of the great tragedies of American justice is that it keeps those who defend indigent persons charged with crime woefully ignorant of ruling case law and procedure. It takes substantial portions of money and time to stay current with continual changes in the criminal law. The lawyers who need the most help, those who defend the poor and socially disadvantaged, are deprived by the system of essential training in law and procedure. Until this happens, it is hypocritical to proclaim that there is anything approaching equal access to justice in our society. If you are a criminal defense lawyer looking for free downloadable motions, here is a list of some Internet sites that may provide some cost-free assistance in providing sample motions and jury instructions: D,C. Federal Defender (This terrific site has many features, including downloadable motions.), Texas Federal Defender (This defender site has downloadable instructions among other information.), and Washington/Idaho Federal Defender (This excellent defender site includes a motion bank; you'll have to call to get a password.) Try this Louisiana capital defense site for a whole raft of over 90 downloadable motions, many that can be customized and used in non-capital cases. See also the Capital Defense Weekly, Death Penalty Defense, and the Capital Defense Network for more death penalty case motions as well as these resources: (1). The Clark County Indiana prosecutor also provides resources for death penalty prosecutions. This Texas Defender site also has a number of free downloadable motions, as does the Colorado Public Defender. The Florida Public Defender has a number of capital defense motions downloadable in Word. This article describes pretrial motion practice from a Missouri perspective and also discusses the elements of a motion, e.g., the caption, the headline, the introduction, the lead, the factual basis, and the prayer for relief. Here's a discussion (no sample motions) of some of the typical defense motions filed in federal criminal cases. If you are interested in federal motions, check the various public defender web sites on this page's drop down menu. See also (1). This public defender Ohio Defender site has some motions re mental retardation in death penalty cases. See Atkins v. Virginia, 536 U.S. 304 (2002). Here are a couple of lawyers with common motions on their web sites (1 -TX), (2). You may even find some blawgs (Here's one. I don't vouch for it.) with sample motions. With regard to expert testimony, to see how one might raise a Daubert issue, take a look at these motions to exclude DNA evidence (1), (2) and handwriting, hair, and fiber analysis (1). There are also some Internet resources for those doing post-conviction writ work. (1), (2), (3).

pretrial motion hearings - practice tips
+ At the pretrial stage of a criminal case, the trial court judge holds the muscle power to issue or deny the orders a party seeks. The contempt power allows a judge to imprison or fine a person, including a lawyer or other officer of the court, who directly disobeys or resists a lawful court order or otherwise threatens to obstruct the administration of justice. The lawyer who respectfully refuses to comply with the lawful order of a court can be held in civil contempt and fined or incarcerated pending compliance with the order. When compliance occurs the contemnor purges himself of contempt. Criminal contempt typically involves insolent behavior in the courtroom or obstructive behavior outside the courtroom. It is punished by fine or incarceration. The important thing to recognize is that the court has the power to enforce its orders granting motions. + At some point in a vigorous pretrial motion process, the trial judge will start figuring out what the case is all about. When they do, they are going to take sides. It's a natural internal decision and will typically be camouflaged in outward neutrality. But the plain fact is that your judge will want the case to come out right. Trial judges have considerable discretion (wiggle room) over the outcome of pretrial maneuvers by the lawyers, e.g., when oral or affidavit evidence is given in support of a motion the trial judge in ruling on the motion may chose to believe or disbelieve any or all of a witness' testimony and the appellate court will not disturb any finding that is supported by the record. If you are trying to get a favorable ruling on your pretrial motions, the key is to conduct yourself at the pretrial hearings in a way that makes the judge want you to win. You are advocating to the court. At trial, when things become more formal and a jury is involved, the judge assumes the role of quiet referee and your advocacy focuses on

the jury, but, even then, it's best to have a "neutral" referee who is silently rooting for you, rather than for your opponent.. + Get your theory of the motion out front as early as possible. Try to make a very brief opening statement at the beginning of the hearing in which you acquaint the court with the gist of your motion, e.g., what you are seeking and why. Know exactly what you are going to say in this opening, and rehearse it a couple of times. + When you present your facts, make them come alive in visual images that you want the judge to picture in mind. As you plan your presentation, use the cartoon method of visualizing the facts of your motion as a four panel cartoon. Paint those images for the judge with testimony, a bench brief, and a brief oral argument at the end of the hearing . + Facts are the meat of your argument. Look for the facts that show a wrong that has been done or a wrong that needs to be righted or fairness that needs to be afforded. + Know your judge. The judge may not know you. Be honest. Be truthful. Be prepared to defend the assertions you make. + Be understandable. At the beginning of the hearing, give the judge a one page list of your main points. + When you present your motion, start with the strongest point. You'll have a couple of minutes of the court's attention. + Courtrooms are not designed for witnesses to testify to the judge. Yet, the court functions as a judge of witness credibility at motion hearings involving issues of fact. Have your witnesses turn and face the judge when testifying to major points. You can cue the witness beforehand to establish eye contact with the judge when you use a phrase such as, "Tell (or show) the judge." If the courtroom design is so hideous that the judge will be unable see the witnesses, consider asking the court to allow the witnesses to testify from the jury box. + Use the motion hearing to evaluate and test the strength and credibility of the witnesses, yours and the opposition's. Try to get a feel for the effectiveness of opposing counsel. Look for flaws that you can exploit at trial. + Always make a brief argument in support of your motion. Defenders, when they are the movant, usually get to have the last word at argument of the motion. Check your applicable rules of procedure. Prepare an outline of what you want to say, e.g., a brief introduction, your key points and the supporting authorities and facts, and a conclusion. Then rehearse or moot your argument. [Follow the suggestions re eye contact, gestures, voice, etc. contained in Delivery of Argument.] Prepare and use a global visual that clarifies your overall argument. When you present your position in argument, don't be pushy or overly verbose. Focus the argument on your strong points, but address and dismantle the opposition's strongest points. Burying your head in the sand won't make unfavorable points disappear. Use your legal research skills to find the latest cases. When you cite cases, have a copy available and always act (even though it is probably not true) as if the trial judge already knows the ruling case law you are citing, e.g., "As you well know (are aware), Your Honor, State v. Smith, at volume __, page __ of Southwestern 3rd states, and I quote, '(read the relevant language)'." + Juries can't ask questions during the opening and argument, but judges at motion hearings often do. Be prepared to be interrupted with questions from the bench. If the judge asks questions during your opening or argument on the motion, respond directly. Don't avoid the issue. When your respond directly to the question asked, try to weave your relevant point (argument) into the response. Be careful not to concede points that will undermine the thrust of your argument. To maintain or heighten your ethos (honesty, integrity, trust), concede facts that are beyond dispute (indisputable facts). Always think in advance about the possible inferences that can logically arise from a premise. Don't argue with the judge.

+ Keep in mind that you can score points and achieve secondary goals, e.g., discovery, impeachment, convincing the judge, even though you don't achieve the primary goal of having your motion granted. If you are seeking information, your questioning of opposition witnesses, e.g. police officers, will have the characteristics of a direct examination. That is, you will ask open-ended who, what , when , where, why, and how questions; you will also pose follow-up questions when the witness evades. If you are seeking meat for later impeachment, you will want to pin the witness' story down at the motion hearing. + Often the trial judge will defer ruling and take the motion under advisement for a period of time before issuing a ruling. When time comes to rule on the motion, the judge's memory of the motion hearing may be faint. It will help the judge remember your argument if you make it a practice to provide the judge with a written summary of your argument on the motion. The judge won't read it at that time, but if you make sure that the summary is placed in the court file, chances are that the judge will review it when considering the appropriate ruling. It may increase your chances of a favorable ruling. Immediately before your argument, say, " Your honor, to save you from having to take notes during my argument on the motion, I've prepared a written summary. I''d like to offer for the file simply as a memory aid that will save the court from having to take notes during my argument." + If the trial court rules against your motion to suppress at the pretrial stage, always ask the trial court to reconsider its ruling when the opposition seeks to introduce the evidence at trial. This request is essential if additional evidence is adduced at trial that supports the motion. [Remember that if the trial court's ruling on your motion is correct on any theory of the law, + If you are using a motion hearing as a way of getting discovery and/or sworn testimony from the other side's witnesses that can be used for impeachment or as probative evidence, your method of cross-examination will be "bass ackwards" from the traditional approach that we take to cross at trial. In the motion hearing for discovery or impeachment, you may want to allow the opposing witness to talk; that means open-ended questions. You will often want to ask follow-up questions. You may even ask for hearsay and for otherwise inadmissible lay opinion. + Check this site for some good practice tips with regard to specific issues that can arise in suppression motion hearings, e.g., tailored police testimony.

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.Use these sites to find Federal Codes, Statutes & Cases and State Cases. Lexisone will allow you free access to USSC cases and state cases since 1998. 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. 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 Rules of Appellate Procedure and the the Texas Uniform Court Reporters Manual. 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 to Restrict Publicity (Gag Order) - 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); See CCJA Ethics; A.B.A. Model Rules of Professional Conduct, Rules 3.6, 3.8; A.B.A. Standards - Fair Trial & Free Press (1992); (1), (2 - 54 page article on the subject of pretrial publicity -2004) Motion to Prevent Ex Parte Contact with Judge (or Jurors) - See CCJA Ethics; A.B.A. Model Rules of Professional Conduct, Rule 3.5; A.B.A. 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. Motion to Withdraw as Counsel 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).

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) (Faretta does not apply to appeal.). 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 A.B.A. 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) - 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); United States v. Mabry, 467 U.S. 504 (1984). See federal cases involving withdrawal of a plea, see Rule 11(d) Fed. R. Crim. Proc. 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 - Benton v. Maryland, 395 US 784 (1969); Blockburger v. United States, 284 US 299 (1932). 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). Note that there is federal Speedy Trial Act of 1974, 18 USC 3161 et seq, see Zedner v. United States, __ U.S. __, 126 S.Ct. 1976 (2006); A.B.A. 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.] ; A.B.A. Standards - Criminal Discovery (1994). 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 also Pennsylvania 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); A.B.A. Model Rules of Professional Conduct, Rules 3.4.(a) & (d), 3.8 (d). 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, 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 Due Process Motion for Court Appointment of 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) [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 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 See Expert 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 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) 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 also Crawford 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; A.B.A. Standards - Joinder & Severance (1980). Motion for Severance of Parties (Defendants) and Relief from Unfairly Prejudicial Joinder - Article 36.09 CCP. (Sample Federal Motion - 11 pages) Motion for an Translator (Interpreter) Motion for Investigative Funds with Which to Employ an Expert 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). Here's a lengthy explanation of the law surrounding recusal of a judge in Texas; A.B.A. Standards - Special Function of the Trial Judge (1999). Motion for Voluntary Recusal (Removal) as Judge Motion for Competency Examination to Determine Present Fitness of Accused to Stand Trial - A.B.A. 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 US 127 (1992). But see Sell v. United States, 539 US 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); A.B.A. Standards - Fair Trial & Free Press (1992). 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 NEW 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 Crawford ruling 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, hearsay statements by a coconspirator at the co-conspirator's sentencing allocution, and hearsay statements officially obtained from witnesses by the government law enforcement authorities. 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". The Crawford ruling could affect trial admissibility of other hearsay statements that "declarants would reasonably expect to be used prosecutorially," i.e., a declaration against interest, 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, __U.S. __, 126 S. Ct. 2266 (2006), below, holding the 911 call "nontestimonial"), a child victim's outcry statements to law enforcement officers or public officials who are not law enforcement agents, 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. 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. 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. 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. 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 United States v. Stone, 222 F.R.D. 334 (E.D. Tenn. 2004) indicating that it is permissible for the testifying expert to use a non-testifying expert's work in forming an opinion; Sauerwin v. State, __S.W.3d __, 363 Ark. 324, 2005 WL 2387643 (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 asault case that the statement of a three year old child, who was incompetent to testfy, 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, 413 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 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 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 __ (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. [Recent USSC cases fleshing out Crawford: In Davis v. Washington, 547 U.S. ___, 126 S.Ct. 2266 (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. In 2006, the Supreme Court granted certiorari in the Nevada case Whorton v. Bockting, No. 05-0595, to determine the retroactivity of Crawford re reopening convictions that rested on hearsay evidence that violated Crawford. (Thus far, the majority of circuits have ruled that Crawford does not apply retroactively to cases pending on appellate review, e.g., Lave v. Dretke, 444 F.3d 333 (5th Cir. 2006). ] Motion to Suppress Illegal Obtained Statement/Confession and for Hearing - (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; 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 exigent circumstance exception to Miranda recognized ; Chavez v. Martinez, 538 U.S. 760 (2003); 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; Rhode Island v. Innis, 446 U.S. 291 (1980); Arizona v. Mauro, 481 U.S. 520 ( 1987); Illinois v. Perkins, 496 U.S. 92 (1990); Pennsylvania v. Muniz, 496 U.S. 582 (1990); 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); Edwards v. Arizona, 451 U.S. 477 (1981); Arizona v. Roberson, 486 U.S. 675 (1988); Minnick v. Mississippi, 498 U.S. 111 (1990); Oregon v. Bradshaw, 462 U.S. 1039 (1983); Davis v. United States, 512 U.S. 452 (1994); McNeil v. Wisconsin, 501 U.S. 171 (1991); Moran v. Burbine, 475 U.S. 412 (1986); 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); Brewer v. Williams, 430 U.S. 387 (1977); 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); Missouri v. Seibert, 542 U.S. 600 (2004) police protocol for custodial interrogation that calls for giving no warnings of Miranda rights until interrogation has produced a first confession, whereupon, warnings are given that lead to the suspect covering the same ground in a second confession does not effectively comply with Miranda's constitutional requirement; Yarborough v. Alvarado, 541 U.S. 642 (2004) a 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, __ U.S. __, 126 S. Ct. 2669 (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); Article 38.22 CCP. 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). Motion to Suppress Illegally Intercepted Communications and for Hearing, (1 Challenging Federal Wiretap Evidence) Article 18.20 Section 14 CCP; A.B.A. Electronic Surveillance Standards - Part A & Part B (2001). Motion to Suppress 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 States 269 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 obtaqining 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 with Thornton 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; 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; 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; 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 Terry seizures; 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 fullfledged arrest, even though proper Miranda warnings 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 non proof 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. Alford 543 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); Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, 536 U.S. 822 (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 Four Amendment rights; United States v. Grubbs, __ U.S. __ (2006) 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, 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, __U.S. __, 126 S.Ct. 1515 (2006) 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, __ U.S. __, 126 S. Ct. 1943 (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 reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury; 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, __ U.S. __, 126 S. Ct. 2159 (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 does not require suppression of evidence found in the search ; Samson v. California, __ U.S. __, 126 S.Ct. 1293 (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; For other statutory sources that may have Fourth Amendment implications, see the federal Privacy Protection Act and the federal Foreign Intelligence Surveillance Act; 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 of Franks 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); A.B.A. Standards - Electronic Surveillance - Part A & Part B (2001) Motion for Suppression of Fungible Evidence Due to Fatal Flaw in Chain of Custody State v. Scott, 33 S.W.3d 746 (Tenn. 2000). NEW 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) NEW Motion to Apply a Rational Due Process Analysis Under the State and Federal Consttution to the Test the Trial Court Uses to Reliability of the Eyewitness Identfication and Ergo the Admissibility of the Identification - See Eyewitness Misidentfication 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 Opinion Testimony - ( 1 - sexual assault case) 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 also Lewis 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 it unanimously 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 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 FRCrimP 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 FRE. 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 CoDefendant 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 Concensus, 1 Lewis & Clark L. Rev. 481 (2005). Motion to Require the Complaining Witness (or Other Witrness) 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 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 - A.B.A. 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 ridiculous 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 Verdict of Not Guilty

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 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); A.B.A. Standards - Fair Trial & Free Press (1992). NEW 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. See Schriro 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 the Vera 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). See also Washington v. Recuenco, __ U.S. __, 126 S. Ct. 2546 (2006) indicating that a harmless error review is permissible in cases on appeal when Blakely was decided. Two recent U.S.S.C. cases, 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 en toto. 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. It remains to be seen just how much weight federal judges should give to the Guidelines in determining the appropriate sentence to impose. For in-depth analysis of the two cases, particularly Booker, 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 742 (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). For basic constitutional law cases dealing with the Sixth Amendment right to trial by jury, see Jury Selection. [Note: In Burton v. Waddington, No. 05-9222, the Supreme Court granted certiorari to determine the retroactivity of Booker to inmate Burton who was sentenced before the Blakely decision was issued.] 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). BACK TO HOME TOP