motions and challenges to evidence -...

1 Copyright © Texas Education Agency, 2011. All rights reserved.

Motions and Challenges to Evidence Course Court Systems and Practices Unit X Pre-trial Essential Question How can an attorney bring to the court’s attention issues that need to be addressed when they concern his or her client getting a fair trial? TEKS §130.296(c) (4)(B) Prior Student Learning Search and Seizure Estimated Time 5 hours

Rationale An attorney needs to be aware of the pre-trial tools they have, through motions and objections, to protect their client from constitutional violations and assure their client a fair trial. Objectives The student will be able to:

1. Identify the different types of motions and objections use at trial 2. Explain the reasoning behind each 3. Play the role of an attorney at trial who has reason to object to the

line of questioning 4. Critique other students’ reason for objecting to the line of questioning

Engage Use the following scenario and question for a class discussion. The Discussion Rubric may be used for assessment. You are an intern working at a defense attorney law firm. You have been given a case to work on that involves a client who needs good representation. As you study his case you see that the evidence is unfairly stacked against him. Some of the issues you have identified that hurt your client are

not all of the elements of the crime are proven

some of the evidence gathered was taken from the client’s house without a search warrant

most of the potential jurors are biased

another person charged with the same crime is going to try to blame your client for the whole thing

What requests can you make to the judge in addressing these issues? Key Points I. Motions

A. Definition 1. A formal request made to a court for it to do something 2. Motions can be oral, which are the most common kind in

trials and hearings 3. Any evidence obtained in an unconstitutional manner may

not be used at trial 4. Motions serve to enforce this rule

B. Motion to Dismiss or Quash 1. This occurs when the defendant believes that the

indictment or information is fatally flawed 2. Examples would include

a. The court lacks jurisdiction b. The facts alleged do not amount to a crime


c. An essential element is not charged d. The defendant has a legal defense such as double

jeopardy 3. If the court agrees with the defendant, the prosecutors are

oftentimes allowed to amend the charge instead of dismissing it

4. Dismissing the charge does not mean the defendant cannot be recharged with it later

C. Motion to Suppress 1. The purpose of this hearing is to determine if the evidence

was obtained in an unconstitutional manner 2. If it is found that evidence was obtained in an

unconstitutional manner then the motion to suppress is granted and the evidence is not allowed in trial

3. Defendants may testify at suppression hearings, and their testimony may not be used against them at trial. This occurs in a separate hearing before the trial

D. Motion for Change of Venue 1. Venue means the place for the trial 2. A defendant may ask for the trial to be moved to another

location if a defendant receives considerable negative media coverage

E. Motion for Severance 1. Defendants may be tried together for the same crime 2. The defense may be antagonistic, which means the jury

must disbelieve one to believe another 3. In this situation, the defendant may want to file a motion of

severance to have his or her own trial to assure a fair trial F. Motion in Limine

1. This can be done by the defendant or the prosecution 2. This is a request that the court order the other party not to

mention or attempt to question a witness about some matter

3. This is similar to a motion to suppress except that it can apply to more than illegally seized evidence

G. Motion for a Protective Order 1. This can be filed if the prosecution fears that revealing

information required under a discovery rule will endanger the case or a person’s life

2. If this applies, the court will review the evidence in camera (in private) and decide if it is necessary to keep it from the defendant or not

H. Motions for Continuance 1. Attorneys can request that hearings or the trial be delayed

for various reasons, including providing more time to prepare for the trial or gather witnesses

2. Courts must be careful not to violate speedy trial requirements


I. Motion for Mental Examination – if the defense counsel believes that the defendant is not competent to stand trial, they can request a mental examination

J. Invoking the Rule – invoking the rule is a request by either party to have all of the witnesses leave the courtroom unless they are in the process of testifying

II. Objections

A. Definition 1. Another form of challenging evidence 2. Objections are made in court by either party that contests

the legality of the other side’s questions 3. There are numerous objections. Some of the most common

will now be covered B. Lack of Personal Knowledge

1. A witness may not testify on any matter about which he or she has no personal knowledge. Nor may an exhibit be offered into evidence without the necessary facts showing its relevance and background being established.

2. OBJECTION: “The witness has no personal knowledge that would enable him or her to answer this question.”

C. Opinion Testimony by Non-Experts 1. Witnesses who are not testifying as experts may give

opinions which are based on what they saw or heard, and that are helpful in explaining their stories.

2. However, in other than matters that are commonly known (such as the speed of a car or clumsiness of a person) witnesses should state only facts—not opinions.

D. Assuming Facts Not in Evidence 1. Attorneys shall not ask questions that assume unproven

facts. 2. EXAMPLE: “When did you stop beating your spouse?” 3. OBJECTION: “The question assumes facts not in

evidence.” E. Questions Calling for a Narrative Answer

1. Questions should be asked so as to call for a specific answer and should not be too broad.

2. EXAMPLE: “Tell us what you know about this case.” 3. OBJECTION: “Counsel is calling for a narrative answer.”

F. Hearsay 1. Asking a witness about a statement made by someone else

is hearsay and is not usually permitted. 2. EXAMPLE: “Did the police officer say the defendant was

speeding?” 3. OBJECTION: “Counsel’s question is seeking a hearsay

response.” G. Relevance of Evidence

1. Only relevant testimony and evidence may be presented


during a trial. 2. This means that the only physical evidence and testimony

allowed is that which tends to make a fact important to the case more or less probable than the fact would be without the evidence.

3. EXAMPLE: The defense asks on cross-examination, “What is your job?”

4. OBJECTION: “I object, Your Honor. The evidence (or testimony) is not relevant to the facts of this case.”

H. Character 1. Evidence about the character of a party or witness (other

than his or her character for truthfulness or untruthfulness) may not be introduced unless the person’s character is at issue in the case.

2. EXAMPLE: Have you ever received a speeding ticket? 3. OBJECTION: “This question calls for improper character

assumptions.” I. Leading Question

1. A leading question is one that suggests to the witness under direct examination the answer desired by the questioner, or suggests a “yes” or “no” answer.

2. EXAMPLE: “Sergeant Jeans, you really couldn’t see the defendant very well, could you?”

3. OBJECTION: “Counsel is leading the witness.” 4. An attorney may ask leading questions when cross-

examining the opponent’s witnesses, and in fact, that is the desired form for cross-examination questions.

Activities 1. Have students complete the Motions and Challenges to Evidence

(open-note) Quiz.

2. Divide the class into two teams. Call out information about the motions and either have the team who calls out the correct answer first win the round, or go back and forth between the teams until there are no more questions and the team with the most correct answers wins. Use the Motions List for this activity. Use the Individual Work Rubric for assessment.

3. Have students create and write scenarios for each objection. Have

the students turn in the written assignment, then divide the class into teams of three. Give each team some of the scenarios written by other students. The number of scenarios per team depends on the total number of scenarios written. Each team must have at least three.

During this activity, the students in the teams will alternate acting as a prosecutor, a defense attorney, and a witness on the stand. Decide


beforehand which attorney position is expected to give an objection. The other attorney and the witness on the stand will role play the scenario until the opposing attorney objects. Have the class assess the objecting attorney on the appropriateness of and reason behind the objection using the Debate Rubric. You may require the students to write explanations of their peer assessment. If you use the additional assignment, use the Writing Rubric for assessment.

Assessments Motions and Challenges to Evidence Exam and Key Motions and Challenges to Evidence Quiz and Key Debate Rubric Discussion Rubric Individual Work Rubric Research Rubric Writing Rubric Materials Motions and Challenges to Evidence computer-based presentation Motions List Resources 0766818314, Criminal Law and Procedure (5th Edition) by Daniel E. Hall,

J.D., Ed.D. Driving on the Right Side of the Road by Law Related Education

http://www.texaslre.org/lre_drsr.html Do an Internet search for lawwebtv Accommodations for Learning Differences For reinforcement, students will explain what injustices could be done if these specific motions and objections were not in place. Use the Writing Rubric for assessment. For enrichment, students will research any history, law, or court cases they can find on how the specific motions and objections came about. Use the Research Rubric for assessment. State Education Standards Texas Essential Knowledge and Skills for Career and Technical Education §130.296. Court Systems and Practices (One to Two Credits).

(4) The student examines the steps by which a criminal charge is processed through pretrial, trial, adjudication, and the appellate stages. The student is expected to: (B) explain pretrial court proceedings such as rules of

discovery, challenges to evidence, and the bail process;

College and Career Readiness Standards

http://www.texaslre.org/lre_drsr.html


English Language Arts III. Speaking

A. Understand the elements of communication both in informal group discussions and formal presentations (e.g., accuracy, relevance, rhetorical features, organization of information).

1. Understand how style and content of spoken language varies in different contexts and influences the listener’s understanding. 2. Adjust presentation (delivery, vocabulary, length) to particular audiences and purposes.

Cross-Disciplinary Standards I. Key Cognitive Skills

B. Reasoning 2. Construct well-reasoned arguments to explain phenomena, validate conjectures, or support positions.


Motions List

Directions: Use the following motions for Activity 2. Choose the order you like.

Motion to Dismiss or Quash

This occurs when the defendant believes that the indictment or information is fatally flawed

The court lacks jurisdiction

The facts alleged do not amount to a crime

An essential element is not charged

The defendant has a legal defense such as double jeopardy

If the court agrees with the defendant, prosecutors are oftentimes allowed to amend the charge instead of dismissing it

Dismissing the charge does not mean the defendant cannot be recharged with it later

Motion to Suppress

The purpose of this hearing is to determine if evidence was obtained in an unconstitutional manner or not

If it is found that evidence was obtained in an unconstitutional manner then the motion to suppress is granted and the evidence is not allowed in trial

Defendants may testify at this and their testimony may not be used against them at trial

Motion for Change of Venue

A defendant may ask for the trial to be moved to another location if a defendant receives considerable negative media coverage

Motion for Severance

Defendants may be tried together for the same crime

The defense may be antagonistic which means the jury must disbelieve one to believe another

In this situation, the defendant may want to file this motion to have his or her own trial to assure a fair trial

Motion in Limine

This is a request that the court order the other party not to mention or attempt to question a witness about some matter

This is similar to motion to suppress except that it can apply to more than illegally seized evidence

Motion for a Protective Order

This can be filed if the prosecution fears that revealing information required under a discovery rule will endanger the case or a person’s life

Motions for Continuance


Attorneys can request that hearings or the trial be delayed for various reasons including more time to prepare for the trial or gather witnesses

Motion for Mental Examination

If defense counsel believes that the defendant is not competent to stand trial, they can request this

Invoking the Rule

This is a request by either party to have all of the witnesses leave the courtroom unless they are in the process of testifying


Name________________________________ Date_________________________

Motions and Challenges to Evidence Exam _____1. What are made by either party in court that contests the legality of the other

side’s questions? a) Motions b) Objections

_____2. What are formal requests made to a court for it to do something?

a) Motions b) Objections

Imagine you are playing the role of an attorney for all of the remaining questions. _____3. The police go through your client’s house and find 18 kilos of cocaine. In a

motion it is determined that the police did not have a search warrant. What will happen to the evidence? a) Nothing. It will be used at trial b) It will be thrown out of trial c) The police will be allowed to go back and show what made them want to

search the client’s house _____4. Your client’s charge is dismissed during a motion. What can happen? I. Nothing. Case is closed II. Your client can be recharged III. The prosecutor can amend the charge

a) I b) II c) III d) II, III

Matching (Part 1): Some answers may be used more than once. _____5. Your client has a witness who is afraid of retaliation if they testify in the trial.

What motion will you file? _____6. Your client has already been found not guilty for the crime he is being

charged with. What motion will you file? _____7. One of the police officers who will be testifying for the prosecution has a bad

history with your client. You know this officer will try to bring up their past encounters in trial to make your client look bad. What motion will you file to assure that this does not happen?


_____8. After spending some time with your client you come to the conclusion that your client has some psychological issues that could keep him from being found guilty. What motion will you file?

_____9. Your client believes it is important for the court to know some facts before the

trial but he is afraid that his testimony will make him look guilty and be allowed at his trial, if there is one. You assure him it will not. What motion are you going to file that this applies to?

_____10. You believe your client will not get a fair trial at the current location. What

motion will you file to address this? _____11. It is trial time and there are a lot of witnesses for the prosecution. You suspect

that they will feed off each other’s testimony which will not be good for your client. What will you do?

_____12. In your client’s case there is another person who is also charged with the

same crime. You know this other person will tell a different story at the trial that will make your client look guilty instead of him. What motion will you file?

_____13. You have reason to believe that the police had no reason to stop your client

when they found illegal items on him. What motion will you file? _____14. The court your client is in lacks jurisdiction over his charge. What motion will

you file? _____15. You have a key witness that will go a long way in showing that your client is

not guilty. The only problem is that this witness is working overseas and won’t be back for two months. The trial starts next week. What motion will you file?

_____16. The prosecutor has good facts but they don’t show that a crime occurred.

What motion will you file? Motions:

A. Motion to Dismiss or Quash F. Motion for a Protective Order B. Motion to Suppress G. Motion for a Continuance C. Motion for Change of Venue H. Motion for Mental Examination D. Motion for Severance I. Invoke the Rule E. Motion in Limine


Matching (Part 2): Imagine you are defending your client in court. What objections will you raise for each situation below? _____17. The attorney wants your client to agree with his statement and expounds

upon it. _____18. A witness testifies about a relationship your client once had that the witness

does not have all the facts on. _____19. An attorney asks your client a question that takes for granted something that

hasn’t been proven. _____20. A witness is asked to give his or her opinion on something her or she saw. _____21. A witness begins to talk about something someone said to someone else who

told them. _____22. The attorney asks the witness if your client is one of those suspicious types. _____23. The attorney asks the witness on the stand who is a banker if they agree with

the evaluation of your client done by a psychologist. _____24. The attorney asks the witness to tell what happened on that day from the

moment they saw the alleged crime occur to the time the police wrapped up the investigation.

_____25. The attorney introduces a detailed account of the weather on the day the

crime occurred even though the crime occurred indoors. Objections:

a) Lack of Personal Knowledge f) Relevance of Evidence b) Opinion Testimony by Non-Experts g) Character c) Assuming Facts Not in Evidence h) Leading Question d) Questions Calling for a Narrative

Answer i) No grounds for an Objection

e) Hearsay


Motions and Challenges to Evidence Exam Key

1. B 2. A 3. B 4. D 5. F 6. A 7. E 8. H 9. B 10. C 11. I 12. D 13. B 14. A 15. G 16. A 17. H 18. A 19. C 20. I 21. E 22. G 23. B 24. D 25. F


Name________________________________ Date_________________________

Motions and Challenges to Evidence Quiz

What are formal requests made to a court for it to do something? 1.___________________________________________

What are made by either party in court that contests the legality of the other side’s questions? 2.___________________________________________

What happens to evidence obtained in an unconstitutional manner? 3.___________________________________________

If a charge is dismissed during one of the motions, can the defendant be recharged later? 4.___________________________________________

What else can the prosecutor do if the charge is dismissed? 5.___________________________________________

What needs to happen when an attorney only wants one witness at a time in the courtroom? 6.___________________________________________

What is the motion to be filed to keep a specific question from being asked? 7.___________________________________________

What is the motion to be filed when the facts alleged to not amount to a crime? 8.___________________________________________

What is the motion to be filed when the defendant has already been found not guilty of the charge? 9.___________________________________________

What is the motion to be filed when evidence against the defendant was obtained in an unconstitutional manner? 10.__________________________________________


What is the motion to be filed when the court lacks jurisdiction over the charge? 11.__________________________________________

What is the motion to be filed when an attorney needs more time to prepare or gather witnesses? 12.__________________________________________

What is the motion to be filed when a defendant cannot get a fair trial at the location of their trial? 13.__________________________________________

What is the motion to be filed when two defendants are being tried for the same crime and their testimonies are antagonistic? 14.__________________________________________

In what motion can the defendant testify without worrying about their testimony being used against them at their trial? 15.__________________________________________

What is the motion to be filed when someone who testifies’ life is in danger? 16.__________________________________________

What is the motion to be filed when nobody knows if the defendant is competent to stand trial? 17.__________________________________________

What are the objections for the following occasions? A question is too broad. 18.___________________________________________

The attorney suggests to the witness a yes or no answer. 19.___________________________________________

A witness gives their opinion on something they did not see. 20.___________________________________________


Evidence about the reputation of a party or witness is introduced. 21.___________________________________________

The witness testifies on a matter about which they have no personal knowledge. 22.___________________________________________

An attorney asks a question that assumes unproven facts. 23.___________________________________________

The question asked of a witness has nothing to do with the actual trial. 24.___________________________________________

A witness is asked about a statement made by someone else. 25.___________________________________________


Motions and Challenges to Evidence Quiz Key

1. Motions 2. Objections 3. It may not be used at trial 4. Yes 5. Amend it 6. Invoke the Rule 7. Motion in Limine 8. Motion to Dismiss or Quash 9. Motion to Dismiss or Quash 10. Motion to Suppress 11. Motion to Dismiss or Quash 12. Motion for a Continuance 13. Motion for Change of Venue 14. Motion for Severance 15. Motion to Suppress 16. Motion for a Protective Order 17. Motion for Mental Examination 18. Question Calling for a Narrative Answer 19. Leading Question 20. Opinion Testimony by Non-Experts 21. Character 22. Lack of Personal Knowledge 23. Assuming Facts Not in Evidence 24. Relevance of Evidence 25. Hearsay


Name:____________________________________ Date:_____________________________________

Debate Rubric

Comments:

Objectives 4 pts. Excellent

3 pts. Good

2 pts. Needs Some Improvement

1 pt. Needs Much Improvement

N/A Pts.

Information

Clear, accurate and thorough

Facts, statistics and/or examples used to support major points.

Communication

Respectful body language

Respectful responses

Focused/On-topic

Sarcasm avoided

Participation

Full participation

Attentive listening

Total Points (32 pts.)


Name_______________________________________ Date_______________________________

Discussion Rubric


3 pts. Good



N/A Pts.

Participates in group discussion

Encourages others to join the conversation

Keeps the discussion progressing to achieve goals

Shares thoughts actively while offering helpful recommendations to others

Gives credit to others for their ideas

Respects the opinions of others

Involves others by asking questions or requesting input

Expresses thoughts and ideas clearly and effectively


Comments:


Name______________________________________ Date_______________________________________

Individual Work Rubric


3 pts. Good


1 pt. Needs Much Improvement N/A Pts.

Follows directions Student completed the work as directed, following the directions given, in order and to the level of quality indicated

Time management Student used time wisely and remained on task 100% of the time

Organization Student kept notes and materials in a neat, legible, and organized manner. Information was readily retrieved

Evidence of learning Student documented information in his or her own words and can accurately answer questions related to the information retrieved

*Research/Gathering information (if relevant) Student used a variety of methods and sources to gather information. Student took notes while gathering information


Comments:


Name______________________________________ Date_______________________________________

Research Rubric


3 pts. Good


1 pt. Needs Much Improvement N/A Pts.

Question/goal Student identified and communicated a question or goal of the research

Research/Gathering information (if relevant) Student used a variety of methods and sources to gather information. Student took notes while gathering information

Conclusion/Summary Student drew insightful conclusions and observations from the information gathered. Information is organized in a logical manner

Communication Student communicated the information gathered and summary or conclusions persuasively. Student demonstrated skill in the use of media used to communicate the results of research

Reflection Student reflected on the importance of the research and its potential application


Comments:


Name:____________________________________ Date:_____________________________

Writing Rubric

Comments:


3 pts. Good



N/A Pts.

The writing has all required parts from introduction to conclusion in smooth transition.

The writing is interesting, supportive, and complete.

The writing demonstrates that the writer comprehends the writing process.

Accurate spelling, grammar, and punctuation

The content of paragraphs emphasizes appropriate points.

The writer shows an understanding of sentence structure, paragraphing, and punctuation.

All sources and references are clearly and accurately documented.


motions and challenges to evidence -...

Documents