When one practices as a criminal defense lawyer long enough in federal court, you hear stories of all kinds of outrageous or odd government motions — my favorites are a Motion to Preclude Jokes, and a Motion to Remind Defense Counsel of Ethical Obligations in Anticipation of Closing Arguments. It makes me suspect there’s a pretrial motion class at the NAC that’s devoted to petty motions in limine.
In order to see whether any of these are real — almost all have been reported to me over drinks, when things tend to get a little Brian Williams-y, I would like anyone reading this to email me the silliest, strangest, or most offensive motions you’ve seen filed by the government in a criminal case.
And there’s a prize! Details below.
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Before I get to that, let me categorize the varieties of government motion I’m talking about.
Motions to Shape the Evidence
First, there are motions that the government uses to cut off a defense, or an argument that might gain sympathy.
For example, in some of the fake stash house robbery cases I’ve written about before — the kinds of cases that cause normal people to yell “entrapment” — the government often files a motion to preclude an entrapment defense. This is, such a motion would argue, because jurors might think critically about what the government did in the case, then not vote to convict.
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Or the government might not want to allow the jury to hear about something that could make the person on trial seem like not such a bad guy. In a fraud case, for example, the government may file a motion to keep the jury from hearing that the person on trial paid people back after they lost money, or that she used the money to pay for something necessary for a sick kid. That stuff, such a motion may argue, invites nullification. (I’ve yet to hear of a defense attorney filing a motion to keep the government from talking about how victims of a fraud were affected by it, which is also irrelevant to guilt or innocence. That may be because defense lawyers believe in fair trials. I don’t know.)
Motions to Resolve Issues that Are Really Jury Instruction Questions
Another chestnut are motions challenging the legal viability of a proposed jury instruction, where there can be no possible evidentiary difference in what will happen at trial, but that fronts the jury instruction question so that’s argued well before the judge normally decides jury instructions.
I’ve seen this where there’s a strict liability misdemeanor accompanied by a felony. Suppose the defense submits a jury instruction that adds a mens rea requirement to the misdemeanor. The government files a motion in limine precluding evidence about that count’s mental state.
Is there going to be a difference between the evidence for that count based on that motion? No. It’s the same evidence at trial. Could it wait for the charge conference? Yes. Why file that motion? Because many prosecutors are fussy.
It’s annoying.
Motions to Leach Any Character From a Trial
Finally, there are motions to do silly things that I mentioned at the very start: like a Motion to Preclude Jokes.
Many defense lawyers think that trials are human events where jurors should be treated to things beyond robotic comparisons of the facts to the elements of the offense. Sometimes, it seems that the government takes a contrary view.
One hears many tales of such things. I’d love to see the motions themselves.
The Details & Prize
Please send me your favorite government motions. If you do, I will (a) write about them here (unless you don’t want me to); (b) out you as a really cool person for sending the motion to me (unless you don’t want me to); and (c) for any motion I write about here, I’ll send you a prize.
What’s the prize you ask? It’s a Starbucks gift card and a copy of my book, which is heavy enough to prop open most doors.
To submit something, email it to me at [email protected].
If you don’t want me to use your name, I won’t. If you want to redact any client information, feel free to do it yourself or I can do it for you. If you only want me to read it and talk about it, but not distribute it, that’s fine too. If don’t want me to share the name of the motion’s author, that works as well. Frankly, if you don’t want me to share it here, but think it’s funny and I might enjoy it even if I can’t make it public, that’s fine too.
It may be that these motions are the stuff of legend and don’t actually exist. It may be that the only people who read this column are disgruntled contract lawyers who have never practiced law but have a passion for commenting on blogs. It may be that no one will send any such motions to me. If so, alas, it was worth a shot.
Earlier: Judge Posner and Fake Stash House Robbery Cases; Why Prosecuting Fake Crime Is Bad Policy
Matt Kaiser is a white-collar defense attorney at Kaiser, LeGrand & Dillon PLLC. He’s represented stockbrokers, tax preparers, doctors, drug dealers, and political appointees in federal investigations and indicted cases. Most of his clients come to the government’s attention because of some kind of misunderstanding. Matt writes the Federal Criminal Appeals Blog and has put together a webpage that’s meant to be the WebMD of federal criminal defense. His twitter handle is @mattkaiser. His email is [email protected] He’d love to hear from you if you’re inclined to say something nice.