In Good Form

Criminal Motion Practice

By Thomas J. Farrell

January/February 2009 Table of Contents

All of the highlighted forms discussed in this article and listed below are available for instant download. Click the form name to obtain an easily modifiable Microsoft Word version of every document.

• Motion to Dismiss on Statute of Limitations [Form 15-1]

• Motion to Dismiss for Failure to State an Offense, Duplicity [Form 15-2]

• Duplicity Motion [Form 15-3]

• Motion to Sever [Form 15-4]

• Motion to Dismiss, to Gag, and for Change of Venue [Form 15-5]

Pre-trial, case-dispositive motions are rare in criminal cases. Therefore, the first decision is whether to file motions at all. In some jurisdictions, including the federal courts, filing a motion stops the running of the speedy trial clock
(see 18 United States Code §3161(h)(1)(F)). In such jurisdictions, it might be better to forego motions and rush to trial because:

• Prosecutors occasionally indict cases before they are ready to try them.

• Sometimes prosecutors indict many defendants, hoping that the less culpable will turn state’s evidence against the more culpable. In such cases, the defendants might benefit if all decide to waive any motions and demand a prompt trial. This might cause the prosecution to extend very generous plea offers to the less culpable defendants, even without requiring cooperation, so as to pare down the case and concentrate on the others. Even those pleas might not buy the prosecution enough time and witnesses to strengthen its case against the leaders; thus, all might benefit from this strategy.

On the other hand, your team might need time to prepare, and filing a motion will give you that time. Furthermore, even losing motions have benefits such as preserving an issue for appeal and forcing the government to show some of its evidence and case theory in its response to your team’s motions.

The strategy of waiving motions and proceeding quickly to trial works best when it surprises the prosecutor, and only when all defendants agree on the strategy.

Raising the Issue of the Limitations Period

Courts vary on their approaches to when the statute of limitations issue can be raised. Some require that the issue be raised pre-trial, while others test the issue as jurisdictional in the sense that it can be raised, even for the first time, on appeal. Some courts permit it to be waived, but only explicitly and knowingly. (See State v. Pearson, 858 S.W.2d 879 (Tenn. 1993), surveying the three approaches and the positions of various states.)

A limitations defense might present a factual issue, such as a determination of when a continuing offense ended, and the jury must decide the issue (e.g., United States v. Oliva, 46 F.3d 320, 324-25 (3d Cir. 1995), limitations issue must be decided by the jury under beyond-a-reasonable-doubt standard; Commonwealth v. Groff, 378 Pa. Super. 353, 369, 548 A.2d 1237, 1245 (1988), issue is for the jury if any of the facts are in dispute).

Since the issue’s determination really depends on the facts adduced at trial, your team must be sure to renew the motion at the close of the evidence, even if a pre-trial motion was filed.

• Motion to Dismiss on Statute of Limitations [Form 15-1]

Failure to State an Offense

An indictment must allege every necessary element of the offense, and failure to do so warrants dismissal. (See United States v. Du Bo, 186 F.3d 1177 (9th Cir. 1999), omission of known element from extortion indictment required dismissal; trial and proper jury instruction didn’t cure error); United States v. Spinner, 180 F.3d 514 (3d Cir. 1999), conviction after guilty plea reversed and indictment dismissed where indictment failed to state that access device fraud affected interstate commerce; but see State v. Smith, 996 S.W.2d 845 (Tenn. Crim. App. 1999), omission of mens rea element not error where the indictment referred to statute that sets forth the mens rea.)

Generally, an indictment or charging instrument that tracks the statute suffices, as long as the statute states
all the elements of the offense. (See Hamling v. United States, 418 U.S. 87, 117-18 (1974).)

Practice tip: Always compare the indictment to the statutory elements of the offense. Omission of an element occurs most frequently when case law has added to the offense an element that the statute doesn’t explicitly mention (e.g., United States v. Du Bo, statute didn’t mention a mens rea requirement, but case law had interpreted the crime as including one).

• Motion to Dismiss for Failure to State an Offense, Duplicity [Form 15-2]

Defect Can Be Raised at Any Time

Most courts consider an indictment’s lack of a necessary element a jurisdictional defect that can be raised at any time. (See United States v. Spinner, setting aside guilty plea where defect raised for first time on appeal, even though inclusion of missing element in second count of indictment provided defendant with notice of the element; State v. Smith.)

Practice tip: If your team is in a jurisdiction that permits it to raise such a defect at any time, your team should not raise such an issue until post-trial motions or on appeal because such defects usually reflect oversights that easily could be corrected by seeking a superseding indictment, not failures of proof. However, the trial judge is likely to frown on such gamesmanship, so don’t raise the issue so late that the client is likely to serve a considerable period of time incarcerated before the appellate court affords relief.

Duplicity

Duplicity is the charging of more than a single offense in a single count of the indictment (United States v. Sturdivant, 244 F.3d 71, 75 (2d Cir. 2001)).

A duplicitous count exposes the defendant to the risk that the jury might convict without being unanimous as to which of the crimes charged within the single count was proven beyond a reasonable doubt. (In Sturdivant, a single count charging two separate and distinct drug sales was held to be duplicitous.)

However, charging several means of committing a single offense in one count doesn’t amount to duplicity. (See United States v. Crisci, 273 F.3d 235, 239 (2d Cir. 2001), indictment charging fraud by both a scheme to defraud and by false statements properly charged two means of committing one offense.)

Generally, your team must raise duplicity before trial. However, it can be raised during trial if the defect doesn’t become apparent until during the trial. (See Indictments, 34 Geo. L.J. Ann. Rev. Crim. Proc. 245, 267 & n.915 (2004), listing cases.) The circumstance of the defect not being apparent until during trial can occur if the indictment appears to charge a single continuous transaction, but the evidence proves two distinct offenses (e.g., United States v. Sturdivant, 244 F.3d at 75).

The remedies are either to demand that the prosecution elect on which offense to proceed, or ask the court to instruct the jury that it must be unanimous as to which offense the defendant committed (United States v. Ramirez-Martinez, 273 F.3d 903, 915 (9th Cir. 2001)).

• Duplicity Motion [Form 15-3]

Speedy Trial Violations

The Constitution guarantees a speedy trial. However, that protection applies only to the most egregious delays. Before it will dismiss a case for a constitutional speedy trial violation, the court will evaluate four factors:

• length of delay;

• the reason for the delay;

• the defendant’s assertion of his or her right; and

• prejudice to the defendant.

(See Barker v. Wingo, 407 U.S. 514, 530 (1972).)

State statutes and rules provide greater protection, often requiring a trial within a specified period, with specified exclusions (e.g., 18 U.S.C. §3161).

Generally, a defendant must move to dismiss before trial in order to avail himself of those protections.

In many cases, your attorney’s preference will be to waive speedy trial protections to gain time to prepare for trial. Your team must consult carefully with the client in making this decision, especially if he or she is wasting away in jail.

On the other hand, consider foregoing any extensions of the speedy trial period when the prosecution appears unready to proceed to trial. Where extensions are the norm and the statutory period is relatively brief, prosecutors might count on those extensions for time to prepare. Pushing the case to trial quickly might elicit a generous plea offer for the client or might catch the prosecutor without necessary witnesses or evidence.

Multiple Charges Against a Single Defendant

Joinder rules generally permit prosecutors to join related charges against one defendant in a single indictment, as well as charges against multiple defendants when they participated in a conspiracy or their respective crimes arose out of the same course of conduct. (See Federal Rules of Criminal Procedure Rule 8.)

Whenever an indictment or information charges multiple counts against the client or joins him or her with other defendants, your team should consider:

• A motion to sever because of misjoinder (i.e., because the counts didn’t satisfy all of the requirements of the joinder rule).

• A motion to sever counts or to sever the client’s trial from the other defendants on the grounds that the joinder unfairly prejudices the client. However, before your team moves for severance on the grounds of unfair prejudice, review the charging instrument to see whether the charges and defendants are properly joined. Misjoinder is legal error and thus more likely to earn relief. (See United States v. Giampa, 904 F.Supp. 235, 264 (D.N.J. 1995).)

Prosecutors and trial courts have substantial discretion in joining counts and defendants for trial, and judicial economy favors a single, rather than multiple, trial, so if the joinder is proper, severance usually isn’t granted.

On the other hand, since the decision to sever is discretionary and the prosecution can’t appeal it, courts sometimes will exercise that discretion and sever if your attorney can convince the court of the joinder’s unfairness or the joinder’s inefficiency.

Your team should file a severance motion before the trial, but renew the motion during the trial whenever evidence or argument inflicts the harm predicted in the motion:

• The admission of a co-defendant’s statement.

• The admission of inflammatory evidence that pertains only to co-defendants or some charges, and not others.

• Co-counsel arguments and questions pointing the finger at the client.

Renew the motion again at the close of trial to complete the record.

When the evidence on the multiple charges is substantially the same, such as when they arise from one incident, or when one witness claims to have been victimized several times, your team probably will want one trial. Trying each charge separately enables the prosecution to refine its proof and test it before different juries. (See “Trial Manual for the Defense of Criminal Cases,” §263, by Anthony G. Amsterdam (5th ed. 1989).)

Furthermore, producing defense witnesses at more than one trial might come at an unaffordable cost to the defense (in the case of expert witnesses) or an unbear-able inconvenience to the witness (a consideration especially important where the witness must remain sympathetic if his or her testimony is to be helpful, such as a character witness).

On the other hand, cumulative evidence from unrelated witnesses to separate events corroborates the client’s guilt. The jury might believe that the eyewitnesses to the first robbery are mistaken. The jury is less likely to believe that the eyewitnesses to the first robbery, the different eyewitnesses for the second robbery, and yet another set for the third robbery all erred.

• Motion to Sever [Form 15-4]

Working With Multiple Defendants

When the prosecution seeks the admission of a defendant’s confession at a joint trial, it has two choices: to effectively redact the statement to eliminate any references to co-defendants, or to sever that defendant’s trial from the others. (See Gray v. Maryland, 523 U.S. 185 (1998), redaction that replaced references to co-defendant with the word “deleted” ruled ineffective.)

Co-defendants might have made statements that will be admissible only against them, but, even if purged of any reference to the client, the statement might taint the client or undermine a defense.

For example, a confession admitting to an unprovoked attack by the defendant and another unnamed person dooms the client’s claim that he or she acted in self-defense. Even if the court instructs the jury to consider a co-defendant’s criminal record only to establish his or her intent or motive, not the client’s, the jury might fault the client for associating with such a character.

On the other hand, a co-defendant might succeed in suppressing evidence where the client would lack standing to challenge it, particularly on Fourth Amendment grounds, forcing the prosecution to choose between severance or foregoing use of the evidence at a joint trial.

There are several other issues that need to be considered when working with multiple defendants.

Guilt by association. Less culpable defendants might prefer to be tried with those against whom the evidence is stronger so that if the jury is inclined to some leniency or doubt, it might compromise and acquit the less culpable. Your attorney can emphasize this theme in closing arguments by explaining proof beyond a reasonable doubt with the suggestion that it’s the kind of evidence that exists against the co-defendant, but not against the client. For example:

• “No one identified my client as being one of the gunmen in the bank.”

• “My client doesn’t drive the sort of car that befits a drug dealer.”

On the other hand, your team might prefer a separate trial when the client’s association with co-defendants whose lives seem to be an uninterrupted crime spree might lead the jury to damn him or her as just another miscreant. The prosecution argument that criminals don’t invite innocent bystanders to witness their misdeeds has a ring of truth to it. Were the client tried separately, the judge might preclude evidence about events in which the client didn’t participate.

The client will have greater success in hiding behind the other defendants where he or she has a legitimate reason for associating with the co-defendants (e.g., they are family members or childhood friends, or the crimes occurred as part of a business enterprise that was not wholly illegitimate).

Antagonistic defenses. Few trial experiences hold more misery for defendants and amusement for prosecutors than the spectacle of co-defendants pointing the finger at each other. Mutually antagonistic defenses or mere finger-pointing among co-defendants doesn’t require severance. (See Zafiro v. United States, 506 U.S. 534, 539-40 (1993).) However, severance is required when the “defenses [are] so irreconcilable as to involve fundamental disagreement over core and basic facts …” such that “the jury unjustifiably [would] infer that this conflict alone demonstrate[d] that both [defendants] [were] guilty.” United States v. Serafino, 281 F.3d 327, 329-30 (1st Cir. 2002), citations omitted; emphasis in original. (See also United States v. Mayfield, 189 F.3d 895 (9th Cir. 1999), inconsistent defenses don’t require severance, but “mutually exclusive” defenses do; and United States v. Copeland, 336 F.Supp.2d 223 (E.D.N.Y. 2004), severance where one defendant would call neutral eyewitness to bank robbery exculpating him but implicating co-defendant.)

Raising this issue before trial forces your team to disclose a considerable amount of detail about the defenses. To preserve the issue, your attorney should renew the objection at trial whenever the joinder permits the introduction of evidence prejudicial to the client (e.g., when the co-defendant testifies, or elicits his or her exculpatory post-arrest statements, or during co-counsel’s closing argument). (See United States v. Sherlock, 962 F.2d 1349, 1362 (9th Cir. 1989); People v. Collins, 186 Ill.App.3d 35, 43, 133 Ill. Dec. 870, 541 N.E.2d 1308, 1313 (1989), court should have granted severance after opening statements and testimony of prosecution’s first witness — there is a continuing duty to grant severance if prejudice appears during the trial.)

A similar problem arises when one defendant testifies and the other doesn’t. Rather than sever, courts will forbid the testifying defendant’s lawyer from commenting on the other defendant’s failure to testify. (See generally Commonwealth v. Russo, 49 Mass. App. Ct. 579, 731 N.E.2d 108 (2000), although co-defendant’s counsel might not comment on the failure of the co-defendant to testify, remarks that his client would take the stand held not to be prejudicial comment on the co-defendant’s silence; Head v. State, 256 Ga. App. 624, 626, 569 S.E.2d 548, 551 (2002), since the co-defendant had no right to comment on the other defendant’s silence, the desire to do so was not grounds for severance in the case; but see De Luna v. United States, 308 F.2d 140, 141 (5th Cir. 1962), in which the court stated, “If an attorney’s duty to his client should require him to draw the jury’s attention to the possible inference of guilt from a co-defendant’s silence, the trial judge’s duty is to order that the defendants be tried separately.”)

Even if the nontestifying co-defendant chooses not to attack the testimony, hearing from one defendant makes the jury more likely to draw the forbidden inference that silence conceals guilt.

Still, where the defense is a unified one, your team might benefit by having a co-defendant who can recite the defense better than the client. The co-defendant might have a cleaner record than the client, or simply be more articulate and presentable. Defenses where one defendant can cover all the defendants might include self-defense or the defense that a fraudulent scheme really was a legitimate and honest, but perhaps misunderstood, business opportunity.

Co-counsel. Your team must consider whether it can work with the co-defendants’ attorneys. The court likely will apportion peremptory challenges and preclude cumulative cross examinations. Your team doesn’t want co-counsel’s sloppy cross examination to rehabilitate a witness your attorney just demolished. Similarly, if the witness goes first, co-counsel could botch a line of cross-examination that the court will not let your attorney repeat in the hope of better results.

On the other hand, working cooperatively with competent co-counsel might augment chances of acquittal. One attorney might undertake the cross of experts, another might focus on legal issues; the defendants hurt most by a witness can bear the burden of attacking the witness, freeing other defendants to argue that they didn’t need to cross-examine the witness because the witness really
didn’t have anything meaningful to say about that defendant.

Attacks from many points can flummox a prosecutor and frustrate the judge to the point that he or she will blame the prosecutor for the decision to join the defendants in one trial.

Prosecutorial Misconduct

Prosecutorial misconduct comes in many varieties, including:

• selective prosecution (Wayte v. United States, 470 U.S. 598 (1985));

• grand jury abuses (Bank of Nova Scotia v. United States, 487 U.S. 250, 256 (1988));

• vindictive prosecution (Blackledge v. Perry, 417 U.S. 21 (1974));

• discovery violations (Kyles v. Whitley, 514 U.S. 419 (1995));

• presentation of false testimony (Napue v. Illinois, 360 U.S. 264 (1959)); and

• improper trial questioning and argument (Donnelly v. DeChristoforo, 416 U.S. 637 (1974)).

(See generally Joseph F. Lawless, “Prosecutorial Misconduct” (3d ed. 2003).)

A motion to dismiss on the basis of prosecutorial misconduct rarely
succeeds, but litigating the motion carries many benefits worth the trouble, such as deterring the prosecutor from future abuses. The trial judge also might scrutinize the prosecutor’s actions more closely during trial. Additionally, repeated motions lay a groundwork for a finding of prejudice if later abuses come to light.

The prosecutor’s response might provide discovery into his or her case. For example, a response to a selective prosecution claim might describe uncharged conduct or investigative findings that made the client worthy of prosecution, at least according to the prosecutor. Also, the prosecutor might stake out a position — such as his or her full compliance with his or her Brady obligations — that your attorney can disprove later.

• Motion to Dismiss, to Gag, and for Change of Venue [Form 15-5]     

Thomas J. Farrell’s practice focuses on criminal defense. He was selected as one of The Best Lawyers in America in 2006 and 2007 for white collar and nonwhite collar criminal defense. He is the author of “Criminal Defense Tools and Techniques” (www.jamespublishing.com or (800) 440-4780), from which this article is excerpted.