Transcript
I'm Alice. And I'm Brett. And this is the prosecutor's legal cruise. Welcome back to the prosecutors legal briefs. I'm your host, Alice, and I'm joined as always by my unlimited cohost, Brett. I love it. Thank you, Alice, so much. I really appreciate you saying such a wonderful thing about me. As usual, not about you. First of all, a little nugget for our Wicked fans, unlimited from one of the greatest songs of all Broadway history, but also unlimited because doesn't that sound wonderful, Brett? To have unlimited everything. Unlimited Do whatever you want. Food, unlimited anything you want, all the leisure in life, unlimited evidence to bring into trial all the time. What could be so wrong about having no limits to anything that we do in the judicial system? Why would we possibly want to eliminate or limit what we want coming into a jury trial? Why? Why? More is always better. Right? More is always better. I think there's no limit soldiers here in the court. Everything should come in. There should be no restrictions whatsoever. I'm sure all defense attorneys would be very happy if we could just introduce any and all evidence. I mean, after all, what do they have to be afraid of? Right? Nothing. Is that the way it should work? Nothing. If truth is on your side, then it doesn't matter what comes in. You should let it all in. Exactly. But, obviously, we're saying this a bit in jest because that is probably what you're hearing all over the news right now whenever you see anyone on the prosecution side deign to file something called a motion in limine, which, by the way, is the most rote practice of all time. It's not quite malpractice not to file motions before trial, but it is absolutely common practice and part of the trial process. In fact, I would say it's part of the trial to be filing these motions that precede trial to determine what types of evidence come in. And rather than saying that it's to limit what evidence the jury can see, I would say it's more along the lines of determining how best to present a case that has to do with the case, not to limit what evidence can be seen. And one way to think about this is the filibuster. Everybody loves a filibuster. Right? What's the point of a filibuster? The point of the filibuster is not what comes out of your mouth. Doesn't matter what comes out of your mouth. That's why you can read good night moon. That's why you can read the dictionary because what comes out of your mouth, the substance means nothing. The purpose of a filibuster is to waste time. You know what happens when we waste time in court? We waste judicial resources. We waste the time of jurors who are you and me, the citizens who sit through these trials, and not to mention the victims and the witnesses who have to put their lives on hold, the defendant who have to sit years on end perhaps if there were no limit to what was being presented. But I've gotten a little too fiery, Brett. Perhaps I just feel strongly about something that seems like those who should know better in the media are trying to put a spin on that I think is unfair. And I don't know if I just notice it more now because we're doing this podcast, but just the amount of misinformation that shoveled out there to people. I I get it. I mean, it's a twenty four seven news cycle. You're trying to cover trials. You gotta talk about something. But it just seems like all this stuff that for those of us who practice is standard practice. Like you said, before every trial, there's a motions deadline for this very reason. Because the expectation is one or both sides are going to file these motions to structure the trial and determine what kind of evidence is going to come in. And I'll tell you how wrote this is. When any case starts, there is typically a boilerplate schedule. It's things like when discovery has to end, when you have to finish challenging experts, when you have to file motions in limine. That is almost always like a line that if you didn't end up going to trial, you just don't fill in. But it's so rote. It is in the boilerplate of every single schedule of a case that goes to trial because it is absolutely part of the life of a case. And the two trials that we're thinking of, though this happens in every case, but but where it's been spun into something controversial, had the Richard Allen case, the Delphi case, and you've had Karen Reed. And in both cases, most recently in Karen Reed because they're getting ready for the second trial and the prosecution you know, it almost feels like the first time the prosecution just kinda rolled in there and they were gonna do what they were gonna do and and win and be done with it. And this time, they're actually taking it more seriously, which is what we recommended they do, by the way, when we covered it. And so you're seeing more of this. But in both those cases, you've had the prosecution file motions in limine. I mean, you had the defense file them too, but apparently, that's okay. Yeah. For instance, in the Richard Allen case, the defense filed a motion in Limine to prevent the bullet expert, the forensics, the ballistics expert from testifying in that case because they didn't want him to testify that the bullet found between the girls had cycled through Richard Allen's gun. That's an example of a motion in limine. That's an example of trying to keep evidence out. And in that case, a prosecution, which we predicted before they filed it, not to toot our own horn, filed a motion in limine to prevent the defense from presenting a third party culpability argument that some other dude did it argument without sufficient evidence to support it. There was three day hearing about that and eventually it was kept out. That will obviously be the subject of an appeal. We talked about that last week. In the Karen Reed case, you had several experts who testified in the first go round and really the sort of Dawbert process, got it right that time, was very limited for them. I personally prefer when you say Dobere. Dobere. The dobert process. Which we did a legal briefs episode on. I mean, I don't think we ever have, actually. I think we should do. Maybe next week it is. Yeah. Maybe yeah. We'll do a dobert episode. But By the way, we're laughing because it's pronounced Dawber. Dawbert. And Brett got all fancy on us. You see? Yeah. There's one person who pronounces it dobert, and I'm stuck on it. Anyways, so in the first trial, take the dog bite expert. So that lady actually reaches out to the defense in the middle of trial and is like, hey, I'll be your expert, because that's exactly what you want from unbiased experts approaching the defense and offering to testify and support them. But so she did that in the middle of trial. So there was no motion in limine. They did sort of an on the fly, Albert hearing right before she testified, but it was it was very limited. This time, as I said, the prosecution is being much more thoughtful about what they're doing. So they filed multiple of these motions. Essentially, either prove that you're an expert, prove that you've got the goods or this person should be excluded. And we've seen a series of hearings on these individuals. One person on cell phone data, one person on dog bite evidence, the accident reconstructionist. There's probably gonna be a hearing on that. So they filed these. They're very standard motions that we have an entire process to deal with them. But you would think that this is the greatest assault on individual freedom and the rights of defendants since, like, 1776. The way commentators have talked about this, you know, the prosecution is trying to deny Karen Reed a defense. And we just wanted to step back and talk a little bit about the rules of evidence, why you have these procedures, the point of these procedures and how they work and what the prosecution may be thinking in pursuing them. Yeah, absolutely. It's always helpful when you have examples we should think of. But remember, what we're talking about, motions in limine are absolutely commonplace. They are commonplace, boilerplate part of every single jury trial. And why is this? So motions in Limine are filed before you go to trial. Pretrial motions, still part of the trial process. The entire prosecution is thought of as like one book, if you can put it that way. Like at the district court, it's like a leather bound book and there's all these chapters in it. Trial is merely a chapter within that entire prosecution at the district court phase. Pretrial is the chapter that precedes jury trial, but it's not like it's a completely different book. I would say the appeal is probably a different book, but think of it as the entire case is that entire book. So from grand jury to a true bill indictment to the preliminary processes, you may have detention hearings, suppression hearings, pretrial motions hearings, evidentiary hearings, maybe competency hearings, and jury trial. I say this because a lot of us only see jury trials on TV or in the news, and we think everything builds up to just the jury trial. The jury trial, while very important because that is where the evidence is being weighed by a jury of your peers, and it results in a conviction if it works correctly or a mistrial or an acquittal, but it is not the only chapter of a prosecution. And I say this because what we've heard in the news is these pretrial motions, the purpose of them are to shut out evidence. That's the wrong way to think about a prosecution. Rather, it's merely the chapter that precedes jury trial. So in the life of a case, first, no motions in limine. That's where it falls within this very typical road map of the life of a case. And I think there's a few things sort of preliminarily to discuss about this. You know, one of them is what is the purpose of a trial? And I don't know if it's just that our civics is so bad or bless them. Defense attorneys have a great PR campaign. They really do. I mean, unless it's law and order, every television show is told from the defense perspective. There's this whole thing about how the defense, you know, they weigh the constitution around all the time. There's this notion that trials are all about the defendant in fairness to the defendant. And that is just not true. It's never been true. Fairness goes both ways. The rules of evidence goes both ways. They apply equally to both sides. We talk about how we want it to be difficult to convict someone. And we talk about, you know, the rule that it's better for 10 guilty men to go for a than one innocent man to be in prison, blah, blah, blah. Right? All that's true, but that is insured through the standard. The standard of proof is what ensures that. The fact that it's beyond a reasonable doubt. The fact that 12 jurors have to come together and determine beyond a reasonable doubt that someone's guilty, that is what protects that right. It's not protected by allowing the defense to do whatever they want to and ignore the rules of evidence and throw anything against the wall and see what sticks. In a trial. The rules are designed to ensure that only relevant evidence that is material is allowed in front of the jury, no matter who it's coming from. And one of the things you have to think about is, number one, what is evidence? Like, has to actually be evidence. It can't be speculation. It can't be misleading information. It has to be actual evidence. But even if it's evidence and it's relevant, one of the fundamental rules that we have talked about before is rule four zero three. And I want to read it to you because it sort of defines this. It is the reason we have this entire practice, and it applies equally to both the prosecution and the defense. Rule four zero three, excluding relevant evidence. So you've already started off. You're going to exclude relevant evidence. So number one, information you admit, number one, is evidence and could even be relevant to the case. You can still exclude it for prejudice, confusion, waste of time, or other reasons. And this goes into what Alice was saying. Let me read you what the rule says. The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. So you have these different things that can keep evidence out that either side wants to bring in, the prosecution or the defense, if it's going to waste time, if it's going to be confusing, if it has a low connection to the case because you're balancing this, how relevant is it? How material is it versus how unfair would it be to bring it in? And you see this particularly with experts. Experts, it's almost supercharged because as we've said before, and as every court recognizes, experts are dangerous. Because once you declare someone an expert, and we see this in true crime all the time, once you declare someone an expert, the tendency is for people to shut off their brain and just do whatever they say. Right? Well, they're an expert. If they say x, x must be true. I'm gonna vote that way. And we have this entire structure, which maybe we should do an entire episode on, to ensure that those experts are tested before the jury ever hears them. And there is nothing wrong, nothing wrong with the prosecution holding and the defense either side holding the other side to that standard and forcing them to show before that expert gets up on the stand that they actually know what they're talking about. And that is what you're seeing, particularly now in the Karen Reed case. And this is an important thing because unlike, say, when you go see a doctor, you know that they've graduated with some sort of a medical degree, there are certain gatekeeping functions that that profession has. Lawyers too. Right? You have to pass the bar. You have to be a member in good standing. So there are certain, like, objective metrics that those quote, unquote professionals or experts have to me. Not so in the courtroom, and we've covered this before about experts. Experts in the courtroom can be about a variety of issues. It doesn't have to be like a formal expert who has a medical degree, for example. And because it's an amorphous adoption of the word expert when there's really no gatekeeping function, the court has to be the gatekeeping function of every single case where an expert is introduced. And so that's why it's important for that judge to determine whether the person before them is indeed an expert on the areas that they wanna testify about, which is why if you've listened to our expert episodes, sometimes the court will say, okay. You're an expert on a and b, but not c. So you have the training to talk about, you know, forensic accounting. But your own hobby of listening to true crime, that doesn't make you an expert in being able to, like, read people's behaviors because you're not a behavioral analyst, but you're a CPA who's trained in forensic accounting so you can testify about that. So once you're an expert, you can't just testify about everything. So you have to prove that they're an expert in each of the areas that you want to present them as an expert on. Another thing specifically about the Karen Reed case, you know, I've heard or I've seen headlines that are like, the judge already ruled to let those experts in in the first place, or the prosecution already let them in and it was really bad for their case. So now they're trying to seek to exclude it because it's bad for their case and they're trying to keep out experts. No. What's happening is whenever you have any sort of a substantive hearing and a jury trial has a very substantive hearing, you show your entire hand at how you're going to litigate the case, you now have a lot more information to go on. So before these individuals testified, they had their resume, but it wasn't exactly clear what they were going to say. Once they've now testified in court, there's just a lot more information for the prosecution to determine whether they are in fact an expert and to use their prior testimony to attack the fact that they should not be experts, and that's what you're seeing here. So the reason you may not see this specific type of situation play out is because retrials don't happen that often. For the most part, trials end in a conviction or an acquittal. Mistrials are a small percentage of the cases that go to trial. And so what you're seeing is there's a larger body of information for the prosecution to draw upon to file their Dawbert challenge. And the court also had less information, and it's not like they had a full on Dawbert motions practice in the first trial. So this is all a live debate that is happening. No one's shutting down anything. In fact, all of the debate is happening ahead of trial so as not to waste the jury's time because this can happen at any time, but there are certain issues that the court likes to have happen before the jury is sworn in that can save time and not waste the time of all these jurors who put their lives on hold to come sit and be a juror. And it's funny because one of the things we always tell jurors is you didn't leave your common sense at the door. You know, when you walked in here and you became a a juror, you brought your common sense with you. Do the same when you're consuming this kind of content and you're watching these cases. I know most of you are not lawyers. You've never been in a trial. You don't really know anything about it, but don't let yourself get manipulated by people who want you to just ignore common sense. There is no other place in the world where you would say, well, we did this before. We learned a ton of new information we didn't have before. But, you know, we did it that way last time. So we have to do it the same way this time. We cannot use any of that information we learned, the lessons we learned. No, we can't use. That would be unfair to the process if we use the information that we learned before and the mistakes we made and the things we wished you could have changed. Now that we're doing an entirely, you know, another iteration of that, can't learn anything. We have to just do the same thing. This is a new trial with a new jury, a new everything is fresh. But what you have, what you're armed with now is the information you learned before. And you can easily imagine an expert gets up on the stand and starts testifying. And you're like, what in the world is this person talking about? And you realize, man, this person is nowhere near as qualified as we thought they were, but you can't unring the bell in that circumstance. I mean, you can try. And lawyers, sometimes at the end of an expert's testimony, will move to strike the entire testimony on the basis that they never should have been qualified as an expert. Number one, that almost never happens. I mean, judges are low to grant that. And number two, even if it did, the jury has heard that entire testimony. You know, what are you going to do at that point? Right. But if you have a hung jury and all of a sudden you're going to do this again and you see that that same person is going to testify, You have an opportunity with that information through the process that's been established by the courts to go to the judge and say, hey, consider all this information we now have. Think about whether or not this person should be clothed with the mantle of expert because we know what's going to happen if you do that. The jury, even if what they're saying doesn't make sense, the jury is going to give weight to it because they're an expert. And I'll give you an example. There's talking about Karen Reed, and so I'm sure there are people out there who just love Karen Reed, so they automatically disagree with us on this. You all want us to cover the West Memphis Three case. Dale Griffis. Dale Griffis is an expert who testified in the West Memphis Three case. He testified, I think, in the Damien Echols and Jason Baldwin trial. He was an expert in the occult. He received his degree, his master's degree and his PhD through a mail order college. He didn't take any glasses. He never attended anything. Basically, he paid some money and he became a doctor in the occult. Right. And because of his expertise, he was qualified as an expert. And he testified in that triple murder trial about the trappings of the occult and why these people were in the occult and everything else. Most people who probably think Karen Reed is innocent probably also agree that Dale Griffiths should never have been able to testify, that he wasn't actually an expert and that allowing him to testify could have corrupted the jury and led them down a path they shouldn't have gone down. That is the entire point. And when the defense attempted to keep him out and when they, in fact, did move to strike his entire testimony at the end, it wasn't because they were trying to prevent the jury from knowing all the important information. They were trying to prevent the jury from being confused by someone who should not have been deemed an expert and nevertheless was. And whenever you have that situation, so there's the confusion giving it undue weight, but also it's not like when people say, well, if it's so clear that they're not qualified or the other side is right, just let them you know, it'll be silly. They'll testify and it'll be silly. No. That's not the case because it will be a waste of time. Because every expert that sits up there, the other side has to call another expert to counter and say something like, he's completely unqualified. This is what it actually is. And so you're having to explain something you never would have had to explain in the first place, which leads to more hours in a jury trial, which leads down the path of tangents away from the main case. And so you can see why there is a harm even if you are putting a complete Yahoo on the stand. Those who say, well, if they're a complete Yahoo, it'll be clear to everybody. First of all, it might not be clear to everybody when, like, the judge swears you in automatically. If someone's sitting on a stand, automatically people give what they're going to say wait because why would a Yahoo be sitting on a stand being sworn in by the judge? So it does cause a lot of harm, and it causes a lot of waste of resources all around for both sides, the judge, the court, as well as the jurors. And the worst, though, when I you know, when I hear this, usually this is from, like, Twitter people, Twitterers, whatever we call them now, Exers. Exers. I still call them tweeters. Tweeters. But you see this some from the professional media, and it always blows my mind. What are they afraid of? What is the prosecution afraid of? Or what is the defense afraid of? Look, we're not in sixth grade. We're not at a girl's slumber party. We're not playing truth or dare. This is a trial. We are trying to make sure that the evidence that comes in before the jury is valid evidence. This is not some test of your manhood to show how brave. Well, I'll convict you with two witnesses and a dog. No, that's not what we're doing here. And this notion that it's some sort of like game of poker or something is just absurd. You go through this process to ensure that your witnesses are the kind of people you want to testify. Now, look, are there other purposes? Absolutely. We've talked about this. This often happens on the defense side. You know, we've talked about preliminary hearings. We've talked about here at detention hearings. Why would the defense want to have these? Why do they want to waste time putting all these officers on the stand and making them testify? Well, one reason you do that is because you want to hear what they're going to say. You're getting a test run of their testimony, number one. You're testing out your attacks, number two. Number three, you're putting them on the record. So they've now testified in court subject to cross examination. And that means in a future hearing, if they change their testimony, you can jump on that. So if the officer says the gun was in the passenger seat in the preliminary hearing and then all of a sudden he's saying it's in the back seat and trial, you can use that to impeach his testimony. That is another value in having these hearings is you're getting to hear and lock in more of this testimony from these witnesses. And one other value it could have, and I'm about to read to you from one of the opinions, You may not get the person excluded, but you may convince the defense not to pursue this angle this time around because they see what's gonna happen. And I think if you're thinking about the Karen Reed case in particular, what did we say one of the mistakes the prosecution made? They tried to go directly at the conspiracy theory. They spent the first half of the trial talking about the conspiracy theory, trying to defeat the conspiracy theory before they even got into the evidence because they were so concerned about the power of the conspiracy theory to overwhelm the jury. Well, I don't think they're going to do that this time, but I think there's some preliminary attacks on the conspiracy theory to discredit and possibly force the defense to not call these witnesses. So we've been talking about the dog bite person. They had this extensive hearing about a week ago on this, and it was a complete disaster for the defense. I mean, the dog bite lady, she testified and she just fell flat on her face. But one thing that wasn't clear, is she going to be excluded? Because most of it was just the substance of her testimony wasn't very good. And today, we did get an order from the court that basically said under Dawbert, going to still allow her to testify and say she is an expert. However, in the last paragraph, the court just like didn't have to do this either because this is not actually necessarily relevant to the question of whether or not she's an expert under Dawbert Daubert. It just lays the smackdown on this woman. I'm going to read you the last paragraph. So they say, you know, she can testify as an expert. In so ruling, the court recognizes that on cross examination, the Commonwealth demonstrated, among other things, that doctor Russell's expertise primarily concerns the treatment, not the identification of dog bites, kind of important since the whole point of her testifying is the identification of dog bites, that her evaluation of the abrasions failed to consider all available information, that she has not compared the abrasions with the detention of the German shepherd in question, and that her opinion is inconsistent with findings that there was no canine DNA in the area of the victim's clothing near the abrasions. However, the court concludes that these issues go to the weight of doctor Russell's testimony, not its admissibility. So essentially saying, look, there's all sorts of problems with this. It has an effect on the weight of her testimony, but we're gonna let her testify. The defense has to be reevaluating this whole thing anyway. The dog was always out there for them. It is part of their conspiracy theory. But even, you know, towards the end, you even saw people who believed in the conspiracy theory start to back away from the dog and say, well, maybe, you know, it was a coyote was just running through the yard and saw John's body in the yard and and took a bite out of him. Right. Like, even they were starting to say this whole dog thing is pretty ridiculous. And it also came out that they, you know, you can compare the Chloe is still alive. She's not buried in the basement as some people speculated, and they have the indentations of her teeth. They can compare it to the supposed dog bites. They don't match. So I think there's a pretty good chance that Russell, the dog bite lady, will not testify on the second trial, that the dog bite thing will fall away altogether. If she does testify, I think it will be incredibly damaging for Karen Reed. So the prosecution has really put themselves in an excellent position. Now, you might be saying to yourself, Yeah, but don't you always say when you do that, the danger is you preview what you're going to do and it allows the other side to become stronger to address it. Well, the prosecution is in a really strong position here because they know, as do we all, hopefully, there is not a dog bite in this case. There's a reason there's no dog DNA because he wasn't bitten by a dog. There's nothing the defense can do to change that fact. No matter how much they prepare and no matter what new expert they get is not going to make DNA from the dog appear on his arm or on his clothes. It's not gonna happen. So there's not a whole lot the defense can do to, quote unquote, strengthen their position. They just have to decide, are we gonna ride with this woman who's the only person apparently they could find to even testify on this? I mean, remember, this is a key part of their conspiracy, and they didn't have a dog bite expert until she contacted them. That's where they were. So this strategy by the prosecution, I think, is going to end up being very effective in limiting this area of the conspiracy theory presentation. And I think you're gonna see that as well on the cell phone analysis. And it'll be interesting to see what ends up happening with the crash reconstructionist as well, who they have also challenged. And another criticism I've heard is that the prosecution typically doesn't file these motions in limine. Motions in limine are available motions are available to everyone. Certainly motions in limine on both sides. Prosecutors often file motions in limine. There's no, like, different standard for who gets to file, the defense or the prosecution motions in limine. And here, there I would argue that it is the duty of the prosecution in this case for the dog bite expert to file the motion in limine because of how unqualified and how lacking that testimony was in the first place. Because remember, the prosecutor's role is not just to win. It's not just to win cases that they bring. You bring cases because you believe that you have, beyond a reasonable doubt evidence to support your case. That's why you bring it. But you want justice and you believe in the strength of your case. Now why is it the duty of the prosecution to bring this motion in limine once they know what the dog expert dog bite expert will say? Because that's not getting the case closer to justice. That leads to more confusion, but it doesn't lead to justice. So in no way is there any untoward actions for the prosecution for filing this. This is, you know, this is like we've said, this is why we train. Right? Why do you practice a song on the piano if you play the piano? Why do you train for a marathon? It's because you learn things about whatever activity you're doing, the expert, the symphony that you are playing, the, you know, terrain that you're going to run on. All of these things cause you to be more learned so that you can be more refined in what you are presenting. The purpose of the prosecution here is to make sure that justice is done. Justice is not done if you throw a bunch of spaghetti at the wall and there's mass confusion and there's mass waste of resources. So this is absolutely proper for the prosecution to bring. And there is, again, no different standard as to who can bring a motion in limine. And and let me just say this. If you're out there and you're not filing motions in limine, you need to start. Good lawyers do this. We have judges for a reason. I mean, here's the thing. Judges during a trial that. Yeah. I mean, they sustain and overrule objections. In some trials, there's a ton of objections. I've had trials where there have been no objections, where no one has objected the entire trial to a single question, to a single thing. And the judges sits up there trying not to fall asleep. Right? So much of the work of trial is done before the trial. The complicated evidentiary questions are not decided on the fly. They're decided on the basis of motions. And in fact, thorough trial practice is not in the midst of trial. Because if you've ever watched a trial, objections are ruled on immediately. Right? Sometimes there will be sidebars, but there's usually not enough time to fully brief and argue all the legal nuances of whatever legal argument you want to make for the case. So if you want the judge to not be rushed and to fully consider all the nuances of your legal arguments, you file a motion before trial because there's no rush. There's a briefing schedule. You can have oral arguments on it. The judge can sit back with all of the briefs and all of the oral arguments submitted and do their own legal research and write an opinion as to why they are ruling the way they are as opposed to having to make snap judgments on the bench during trial. And there's a lot of things going on, a lot of papers flying around, not wanting to waste the jurors' time. So if you're filing motions in limine, I would argue that you're being incredibly thorough and making sure the judge has everything that he or she needs in order to make a learned decision. And I'll just return once again. If you start at the baseline, the baseline we all agree on, whether you know it or not, is that everything doesn't come in. Okay. We all agree that there are some pieces of evidence that should not come into a trial. You know, if you have a defendant who has done some bad things in his past, some things that would make jurors not like him, that we all agree has nothing to do with the case at hand. It's completely separate. We all agree and the rules of evidence provide that that evidence should be kept out, that emotion in limine should be filed. And that's how it happens. That's how this happens. When you have that kind of evidence, you would file a motion in limine and you would say, under rule four zero four a, this is propensity evidence. It's character evidence. It should be excluded. The prosecution should not be able to introduce it. The prosecution, if they have an argument why it should come in, they can make that. And then a judge will make that decision. We all agree there's evidence that shouldn't come in. These are just different arguments about different pieces of evidence about whether or not they should be allowed in. And it's the job of the judge to make those decisions. Filing these motions. There's nothing untoward about filing these motions. You might think they should be denied, and that's fine. That's you making a legal argument. That's fine. But trying to present the filing of the motion itself is some sort of a front to liberty and justice is silly. It's silly on his face, and it's unfortunate that we see this more and more often. And the reason it's silly is because I think the argument we hear is they're trying to hide everything in darkness. There's nothing more on the record than filing motions. They're publicly filed on paper, so it's not just to the wind and you have to depend on a transcript to know what happened. When you write something down on paper and filed with the court, it is stamped. It is an official document forever. It's part of the case. It is typically available to the public for anyone who wants to read it, and you will see the opportunity to respond, to that motion and then you get to then respond again. So there's nothing in darkness about it. If you don't go read the motions, that's on you, but it doesn't mean that these arguments are meant to shield the truth from the day of life. If anything, it is immortalizing these arguments and the law on paper for all to see, for all to be able to read. And I'll give another example because I I think we're used to that example of, okay, I understand why his 15 rape convictions shouldn't come in because that's gonna be so prejudicial if he's facing Yeah. Another rape trial. Case. In this yeah. In this tax fraud case or even another. Yeah. Exactly. Let me give something slightly different because I hear a lot of people say, well, they are an expert in this. Okay. Let's talk about a case, a tax fraud case that had nothing to do with cell phones or cell phone pings or cell phone dumps or geofence warrants. Right? We've talked about those things before where maybe you're using a geofence warrant to figure out who was in the area to be able to rob a bank. Okay? That could be a good use of the geofence warrant. We're talking about tax fraud. This guy filed a fraudulent tax return and said he had 10 kids so he could get a bunch of child credits and he had zero kids. Never seen a kid in his life, and he gets all these child credits. That's what the case is about. And you have the defense say something like, we want to put on this geofence warrant. He has been with the FBI for thirty years, and this is what he did for thirty years. He's retired now, and he is absolutely an expert in geofence warrants. You can't keep out this absolutely tried and true expert. Well, the geofence has nothing to do with this case. You're right. He's an expert on geofence warrants, and you're right that geofence warrants are something that is a thing that is a tool within investigations in the criminal investigative world. Doesn't mean it has anything to do with our case here. So just because you're able to prove they're an expert in a certain area, it has nothing to do with our case. What's the harm? Just put them on there. Okay. So you're gonna have this tax fraud case. The jurors are gonna hear some expert talk about the intricacies for probably ten hours of how cell phones work and how geofence works and how satellites work. And then they'll be like, wait a second. What what are we talking about? Then the prosecution has to call another witness and say, okay. This has nothing to do with anything. Why did you just hear this? And we're all remember, we do live in a vacuum in a jury trial. We think everything we hear has to make sense. And so you think that the geofence expert is a piece of the puzzle you have to fit in, has to fit in this puzzle. I have to finish this puzzle. I can't have any leftover pieces. That is what four zero three is talking about when you don't need something that's cumulative and you don't need something that's completely unrelated to the case. We and I that may seem like an extreme argument, but it's not in a lot of these expert types of things. They're saying they really are an expert. I don't care if they're really an expert. First of all, I don't think the dog bite person is an expert in dog bite identification specifically. She treated people who were bit by dogs very different than dog bite identification. But I say this because don't be misled and there absolutely is the fear of misleading a jury because you are putting them into a room, they're not allowed to talk to other people, and they are trusting the professionals before them, the attorneys and the judges, to be giving them the pieces of a puzzle for them to then fit together. And if you give them a bunch of extraneous pieces, of course, there's going to be confusion. There's always going to be confusion for anyone, and we're not saying that jurors are dumb. I would be confused if you gave me an actual puzzle and gave me, like, 15 pieces that had nothing to do with the puzzle, you bet your bottom dollar I'm gonna try to make those 15 pieces fit for a very long time, wasting everybody's time doing so. And, you know, the other thing as far as confusion goes is something we've had people talk to us about. If you have two experts and one says one thing and one says the other, how are you supposed to figure that out if you're a juror? And if you have one person who's not really an expert but got qualified as an expert, and then you have a real expert. Somebody is a real expert who should have been qualified, and they're testifying a. And then the other person who, for whatever reason, either they didn't have the Dawbert hearing or it wasn't well done or or whatever, gets to test if I as an expert, then all of a sudden they have created confusion where there shouldn't be because they are testifying by something they don't really understand. This person, this doctor Russell, great. She works in an emergency room. She's seen people who've been bitten by dogs. Fantastic. That does not make her an expert in identifying whether or not something is a dog bite and what kind of dog it comes from. Say she testifies and say the government gets somebody who actually is an expert. I guess they're canine odontologist or whatever who comes in and says, look, this is clearly not a German shepherd. This is not what a German shepherd bite looks like. And then you got the ER doctor come in and say, well, yeah, but I've treated people who've been bitten by dogs, and I think it is. Well, now you have a you have a battle on the experts and you're calling upon the jury to make a determination between these people when maybe one of them shouldn't have even been qualified in the first place. And the example Alice used is an extreme example, but that's the whole point. You can exclude experts. There's an entire body of law about how it works. So walking through that body of law with a particular expert in making your arguments is just standard practice. You know, we spent forty minutes here talking about something that is so basic and just such a fundamental part of the trial practice. But because people don't know that they're being manipulated by people who either should know better or just also are arguing from ignorance about this. And you see these people on court TV and you see these people on YouTube and you hear these people on podcasts acting like filing these motions is in of itself a due process violation, and nothing could be further from the truth. And this is just from two lawyers who are currently still practicing. This wasn't something we did back in the in the day, and now we're just talking heads. We're talking heads when we should be sleeping because our day jobs are lawyering, is if someone is telling you it is absolutely inappropriate for prosecution to file motion in limine, that's false. If anyone says that filing motions in limine is trying to sweep something under under the rug. False. Because of what I just said, these are actually on the public records. There's usually a whole record, quite literally, a whole record that you're making, especially if there's oral arguments about it. And these are typical trial practices to streamline the jury process. It is all part of the prosecution, that leather bound book that we have, the life of a case. It is a chapter in the life of a case that is part of every single case. It is not special for Karen Reed's case. It is not special for Richard Allen's case. These are rote management tools by the judge in order to make jury trials streamlined because what we are doing is asking random people off the streets to pause their lives to serve their country as jurors. And we owe them an efficient, not just the jurors, but, obviously, the entire judicial system has ramifications on our entire society, an efficient administration of justice. And motions in limine are one of the tools to do that. One. You heard me say that. One. Because there are so many other tools that are used. And you know what? We'll probably hear someone else say the next thing, like, suppression hearings are the way that the government suppresses the truth. That's why it's called a suppression hearing. We'll come back and do another explanation of how that is absolutely not true. So if you hear those types of things, just know that that's just not true. Ask anyone who practices trial law. Lawyers don't all practice trial law. There's nothing wrong with that. They're just different types of attorneys. But anyone who practices trial law will tell you, of course, motions in limine are rote. Of course, motions in limine can be filed by both sides. Of course, motions in limine are not done in the dark. They're not done off the record. Quite the contrary. There's an entire record made of it. So hopefully that clears it up. And if you have no idea what we're talking about, then maybe you have not bought into a lot of the talking heads who say things that I find quite shocking if they've practiced law. And we'll we'll do something on the the Dahlberg standard just to walk through it. I mean, there's a lot of interesting sort of legal aspects that what the test is, and that'll be helpful for you going forward as well. But you wouldn't have the Dahlberg standard if you did not have this kind of thing. I mean, that's the whole point. Does this person get to testify or not? And that's the standard that's applied. Well, that was great. If you guys still have questions, you know how to reach us. By the way, these episodes are all in response to questions that you guys have, so thank you. Especially on legal briefs, we love hearing what's on your mind. We try to react in real time to true crime news. There's just so much of it. And I never would have thought this was confusing if a lot of you didn't bring it up that there were media outlets saying the opposite. And so us walking through this, I never would have thought of it had you guys not brought it up. So thank you. And you can always email us at prosecutorspodgmail dot com with any suggestions for episodes. And you can reach out to us and find us on social media. We are on the x Twitter. We are on the TikTok and Facebook and Instagram. Come find us and come talk to us. Brett, is there anything else you'd like to add about motions and limine? No. I think I'm good on motions in limine. I'm gonna limit myself. Ah, there you go. By the way, motions in limine. You guys have heard of a liminal space. It comes from the same type word. It means, like, at the threshold of trial. But it is the whole purpose is to limit what you can introduce. So let's pull up some legal briefs questions. Remember, if you leave a five star review on either podcast and you leave a question, we will answer it for you. Okay. Let's see. This is a nice one. This is from Mander thirteen thirteen. And Mander wants to know, what is your favorite family tradition? Oh, that's really nice. You know, it's kinda fun because both of our kids are so young that, like, traditions are forming now. You know? So it's like it's still new. I'm I'm talking about my current like, my immediate family. I don't know. If you have one, you can go. I have to think about it a little bit. So, yeah, I mean, that's a good point. Sort of making new traditions. But one of my favorite family traditions revolves around Christmas, actually. So and it actually works out really well now because my family has always really celebrated Christmas on Christmas Eve. So that's the one time that I get together with sort of my extended family. And so Christmas Eve, I always go back home and various family members all come together on Christmas Eve. And now we've gotten kind of old. You know, the youngest one was in their twenties. And so now my kids obviously are the center of attention when they go and they are. They're three and five. So Christmas is a magical time. So everything's about them. But I've always really enjoyed that because I always like to see my family, who I don't really see that often at all. And so it's always nice. And so that's always been one of my favorite things is the Christmas Eve get together. That is really sweet. I love that. We some of you may have heard this past Christmas, we hosted, like, 17 people, 10 who are kids, like, 10 and under. It was my siblings and all of our kids, and it was so much fun. This is I hope that becomes a tradition because it's so hard to move that many bodies around. We live literally from coast to coast, and it's like pulling teeth to, you know, move that many children around the country. But we've spent several Christmases together. And to do Christmas morning with, like, 10 kids, all cousins, is so fun. And one of the things we do is, you know, everyone gets stockings and they trade the things that they find within it. Usually, like, they have little tchotchkes and cards. And each year, we've gotten them, like, matching shirts. It's a pun. You guys know how much I love puns. It is a pun off of my maiden last name because I have brothers, so I'm the only one who's has a different last name now. And it's a pun off of our last name, and it's so cute. They're so cute. And all the kids love so much being part of, like, a crew. So the whole time we're together, which is like, a long time, like, several days or a week, they all refuse to take off their, like, cousin shirt. And so we'll, like, go out to, like, the NASA Space Center all wearing it together. We look we look kind of like a little mini cult because they all kinda look alike. And they all are little, and they all have these matching shirts with a word that no one understands because it's not a real word. So I love matching. I just I think kids really love it too. So I hope that becomes a tradition that we get to spend Christmas, like you said, altogether, but also that we make all our kids match all the time well into their teens. Like, it's I want it to be awkward that they are, like, adults all matching. We always eat barbecue too. It's, you know, a non traditional sort of Christmas. And we always get barbecue from this, like, this place called Top Hat. Those of you who are in North Alabama, you've never been to Top Hat. It's one of those classic sort of middle of nowhere, side of the road barbecue places. It's amazing. So we always get that. That sounds great. You know, I'm from Texas, so barbecue has a special place in my heart. Well, that was a heartwarming question. Thank you, guys. And one of those 10 kids is now calling for my attention. But this has been wonderful. You guys, thank you for all your support on this podcast as well as our other podcast, The Prosecutors. Let us know what you think. If you have any questions, always write in and we're happy to answer them. But until next time, I'm Alice. And I'm Brett. And this is The Prosecutor's Legal Briefs. I couldn't get my my third finger up. I was like You know, I don't need the fingers. I'm not actually looking at you when you do it. I know. I don't know why I do it, but I couldn't get my third finger up. It was very disconcerting. So we have no outline today, guys. This is gonna be we're just gonna rant. Yeah. Who needs an outline when you're just talking about common sense and I'm in. Baseline legal practice. Okay. Hold on. Let me let me let me start. Before I finish, I'll take my time. Stuff in before we start. I know. I know. Let's see. Okay.
Comments