Evidence Practical Project Fall 2018
LAW 6330 (4 credits)
Professor Pedro A. Malavet
As I announced in my Syllabus, I require each student to submit a practical project that accounts for ten percent (10%) of your testing score for this course. The project is judged on a pass/fail basis.
Each student will work individually, although I have assigned you a role to play as indicated below. You are allowed to discuss the problem with your classmates and may refer to forms and other resources, as long as you draft your own motion.
Your assignment is to write a motion in limine, based on the fact-pattern that follows. Students with last names starting with letters between ALE and KRE will write for the defense and those whose last names fall between LAI and ZAM will write for the prosecution, the State.
You will assume that the applicable rules are the Federal Rules of Evidence, together with accompanying caselaw as studied in your Fall 2018 Evidence Course. Your motion must adequately represent the interests of the party you represent, be it the defendant or the People of the State, and make reference to the pertinent Federal Rules of Evidence, cases and other materials included in your casebook and Rules supplement (you are allowed to extend your research beyond these resources, but it is not required).
I recommend a list of bibliographic resources collected by the Legal Information Center [click here to view the bibliography]. I also highly recommend the Public Defender Service of the District of Columbia Criminal Practice Institute Trial Manual 2015 is the current one (click here for PDF); there is a supplement (click here to for PDF).
DUE DATE: Projects are due on or before 4:00 p.m. on FRIDAY, October 26, 2018. All documents must be in either MS Word or PDF format and must be uploaded to the eLearning in Canvas course page using the Motion in Limine-Practical Project assignment created for that purpose.
The system will be set to allow multiple submissions up until the time of the final deadline. Uploading a file that is corrupted and cannot be opened will be treated as a failure to make a timely submission.
- Frequently Asked Questions
- Is there a maximum length to the project?
- No.You may write as much as wish.
- Is there a minimum length?
- There is certainly a minimal level of effort required to pass. But, at least five (5) to ten (10) pages, double-spaced, is about what it should take to do minimal justice to the project.
- May and should I use headings and subheadings?
- Yes. Preferably the ones I post on the board every day.
- What title should I use?
- Motion in Limine To:
- Admit [certain evidence], if you are the prosecution
- Exclude [certain evidence], if you are the defense
- Is there a maximum length to the project?
State v. Winnfield
Superior Court of the State of Delaware, Newcastle
Facts and Procedural History
This matter comes before the Superior Court of Delaware, Newcastle for trial. Jules Winnfield faces a jury trial on first-degree murder charges.
Prior to trial, the state moves in limine to admit the recorded statement of a deceased witness identifying defendant. The defense filed a motion opposing the admission of the statement on hearsay and Confrontation Clause grounds. After holding an evidentiary hearing, the trial court withheld resolving the issue pending the filing of new motions in limine by both sides. However, the court has prepared the following statement of the case and now asks the State and the Defendant to argue how it should rule.
THE TRIAL COURT’S STATEMENT OF THE CASE
The facts necessary to understand the issues in this case take us through the parking lot of a north Wilmington apartment complex, through a police station and eventually to the tragic death of the State’s star witness, who is now unavailable to tell the story of what happened. Her death has caused an evidentiary quagmire that the State has asked the Court to rule on pretrial. The Court will do so by first discussing the story of the case, as understood through the lens of the deceased witness’ statements.
Holly Smith was a nearby Pennsylvania resident whose life put her in contact with drug addiction and its attendant personalities. By December, 2015, she had prior convictions for shoplifting and was actively on probation in Pennsylvania from a drug conviction. She had been to rehab, had been on home confinement, yet continued to battle her demons. She was living in the basement of her sister’s house, trying to stay clean; her success cannot be claimed with any certainty.
On December 3, 2015, Ms. Smith asked her sister Susan to drop Holly off at the family doctor’s office for a routine visit, assuring her sister that she would get a ride home from someone else. Susan was acutely aware of Holly’s drug use but believed Holly was capable of getting a ride. Once Susan left Holly, Holly proceeded to her doctor’s appointment and contacted “Marvin” (not otherwise specified) who lived in the Brandywine Apartments in North Wilmington, a short drive away from the doctor's office. Marvin invited Holly to visit and asked Holly to obtain illegal drugs (cocaine) for him to ingest when she arrived. Holly agreed to Marvin’s request.
Holly knew at least two individuals who could satisfy Marvin’s request: James Black and Jules Winnfield. Holly called James Black to request $60 in crack, but the battery on Black’s phone apparently died mid-order and she was unable to be certain the arrangement had been solidified. After waiting a while near the doctor’s office to see if Black got the message clearly, she tried Jules Winnfield. Winnfield responded affirmatively and offered to pick up Holly and bring her to Brandywine Apartments.
According to Holly, Jules Winnfield and a female picked her up in Winnfield’s car and drove her to Brandywine Apartments. Along the way, they engaged in casual conversation. At one point Winnfield asked Holly if she had seen James Black, who had recently been in custody. Holly told Winnfield she had heard that Black was out of jail, and Jules Winnfield asked Holly to reach out to James Black and ask him to bring the $60 in cocaine to the Brandywine Apartments.
At this stage in the narrative, Officer Omar Gonzalez asked if she had another $60 for more crack and Holly explained that she already had $60 in cocaine that she was procuring from Jules Winnfield. She had no more money and did not want another $60 in cocaine from James Black. According to Holly’s continuing statement, she knew Winnfield and Black were acquainted and assumed (incorrectly) that Winnfield simply wanted to see Black to say hello. She did not question why Winnfield wanted her to order drugs from Black, “an odd request given that Winnfield was a drug dealer,” Officer Gonzalez interjected. She continued that she accepted uncritically why Winnfield wanted her to engage in this ruse with Black, and obliged Winnfield anyway.
It was a fateful error. When Holly and Jules Winnfield got to the Brandywine Apartments, she still had not heard back from James Black with his dead phone battery. Winnfield left, asking Holly to get in touch with him if and when James Black contacted her. Marvin came out of his apartment, paid Winnfield for the cocaine and Marvin and Holly proceeded into Marvin’s apartment.
Just a few minutes later, James Black phoned Holly and, as requested, she asked Black if he could still deliver the $60 worth of cocaine they had previously discussed to her at the Brandywine Apartments. Black agreed. Holly immediately called Winnfield, who told her he was still in the parking lot and Winnfield would see Black when he arrived.
When Black arrived at the apartment complex, he pulled up in a pickup truck that Holly did not immediately recognize. She approached the truck to confirm it was indeed Black, at which point she realized Winnfield was approaching the truck on foot. Winnfield fired multiple shots into the truck, hitting Black and causing his demise.
Exactly where Holly was as the shots were fired is not entirely clear. What is certain, however, is that she was very quickly back in Marvin’s apartment. Winnfield had left for points unknown. Within minutes of returning to the apartment, she got a phone call from Winnfield threatening her life if she reported anything she had seen and directing her to get rid of her phone. Holly quickly removed the SIM card from the phone and flushed it down the toilet. She then put the phone between the cushions in Marvin’s apartment.
Police swarmed the area and found no one outside, only the victim still in his truck. About two-dozen officers and forensic technicians were in the area. Homicide detectives and forensic technicians studied the victim and his truck, took photographs and gathered evidence before Black’s body was removed by the county coroner and the truck was towed to the police evidence impound lot.
Meanwhile, other officers went around the apartment complex trying to find any witness to the crime. Two knocked on Marvin’s door. Holly and Marvin avowed they knew nothing about what had happened in the parking lot, but it was all a bit much for Holly. She walked away from the complex and, borrowing a friend’s phone, she called her sister Susan for a ride out of the area. Susan arrived shortly and quickly realized that Holly had been through an ordeal. Holly would only tell Susan that something horrible happened back at the apartment complex, at which point Susan told Holly it was essential that she return to the scene and tell the police what she knew.
Susan and Holly flagged down one of the swarming County police officers (Gonzalez). Officer Gonzalez drove her to the police station and while doing so, switched on an audio recorder and asked Holly to “tell me what happened.” Thus, Holly gave her recorded statement concerning what had just happened. This court heard the recording in camera and it is beyond question that her mental state was one of extreme agitation and her statement was disjointed, punctuated by frequent bursts of “Oh my God,” and occasional questions by Officer Gonzalez.
The county officer brought Holly to the police station where the audio recorded statement was turned over to homicide detective Christopher Koons. Koons got identification and address information from both Holly and Susan. He also obtained a short statement from Susan describing Holly’s call to her and what occurred when she picked up her sister at the apartment complex. Detective Koons deemed Holly to be too upset for further questioning, he said during the pretrial hearing, when explaining what happened after that.
After her interview in December 2015, Holly Smith was sent home while the investigation continued. It is unknown whether and when Ms. Smith relapsed into her drug addiction. What is known is that on August 16, 2016, Holly died of a fatal dose of chemicals. We are told she succumbed to an opioid analgesic called U-47700, which has a street name of “Pink,” a drug with 7.5 times the potency of heroin.
At the hearing the court heard the recording of the statement and was able to read the transcript of it that has now been prepared in anticipation of trial. The State will also offer into evidence at trial telephone records confirming that the phone calls described in Holly Smith’s statement occurred between telephones tied to the relevant parties around the pertinent time period. The State, however, does not have location information for the cell phones at the time of the calls because that data had been accidentally destroyed by the wireless telephone company.
“Marvin” was identified at the evidentiary hearing as “Marvin Stoltz”. He is not expected to testify at the trial because he is a fugitive from justice. At the hearing, police officer witnesses testified that on the night of incident they had interviewed Holly and Marvin at the apartment and that Marvin had identified himself with photo identification as Stoltz. Those two officers also testified that Holly seemed “very jittery” and “scared” when they spoke to her in the apartment.
Susan Smith testified at the hearing about receiving her sister’s call and going to pick her up at the apartment complex. Susan added that her sister looked extremely “upset” and “scared” at the time. She also described how they came to flag down Officer Gonzalez.
At the evidentiary hearing, the State presented photographs of the crime scene depicting the victim dead in his car. They further presented testimony from the County Coroner who conducted the autopsy on James Black stating that the victim died from multiple gunshot wounds. The wounds to the head and heart were fatal. Detective Koons testified as to Black’s identification based on fingerprints on file from his prior arrest record as well as identification of the corpse by his relatives.
The state does not have any eyewitness who saw defendant Winnfield in the apartment complex or its vicinity around the time of the murder. They also lack an eyewitness to the actual shooting. Holly Smith’s statement is therefore critical to the State’s case.
The defense does not contend that Black was not been murdered. Instead, it will pursue an alibi defense, offering multiple witnesses who will state that Winnfield had spent the entire time around the occurrence of the murder detailing his car in a friend’s garage. Defendant Winnfield will not testify.
The State correctly surmises that Holly’s death casts the admissibility of any of her prior statement in doubt and has sought a ruling from the Court. Arguments are pressed for the admissibility of the statement, and they coalesce around common themes: F.R.E. 803(1) (present sense impression) F.R.E. 803(2) (excited utterance) and F.R.E. 807 (the residual exception). But the “elephant in the room” as to all of them is the Supreme Court’s jurisprudence on the Confrontation Clause. For if a statement violates the Confrontation Clause, it matters not that it may “fit” within a hearsay exception.
Each side must argue for or against admissibility using the applicable Federal Rules of Evidence, together with any common law doctrines that may be pertinent here as well as any constitutional rules that may apply.
- Facts taken and modified for examination purposes from State v. Clark, 2017 Del. Super. LEXIS 82, 1-7 (Del. Super. Ct. Feb. 13, 2017). As this matter is yet to go to trial, the names of the parties and witnesses are fictitious.
A typical motion looks roughly like this
(you must of course modify the form to fit the current fact-pattern):
student name] 
In the United States District Court
For the NORTHERN district of FLORIDA
GAINESVILLE division 
[Case Title] 
The United States,
vs. Criminal No. 2003-192 
[Document Title]  Motion in Limine
[You should add Specific purpose: e.g. “To Admit ...” Or “To Exclude ...”]
[Body of the Document: What you want to say/argue]]
[Certificate of Service] 
[Counsel’s Signature, Address and Telephone Number.] 
 In some courts, counsel must include name, address, telephone number and identify the client at the top of the first page of any filing, as an administrative convenience.
 The positioning of the court designation in the document varies from state to state and even among the Federal Judicial Districts. But, somewhere on the first page, the party must identify the court before which the action is pending. In the federal system, you will specify the district and the venue within the district. In a state case, the specific court tends to be very local, especially at the trial level.
 In the complaint, the case title must include the names of every party, plaintiff or defendant. Thereafter, a shortened case title is used. In our example this is not a problem, but imagine a case with hundreds of parties. (The title of amended complaints in the DuPont fire case listed all parties and took up hundreds of pages). In a criminal case, it is the State or the People, or the People of the United States vs. defendant(s).
 The case number is assigned by the clerk of the court. The designations typically will indicate if the case is a civil or criminal matter. Other sub-categories may also be used, depending on local practice. The number usually includes the last two digits of the year in which the matter is filed, followed by the assigned number.
 The document title is sometimes placed to the right of the case title, this depends of local court practice. It is never placed before the court designation.
 The opening tells the court which party appears before it to request something. For example: “NOW COMES the defendant, John Smith, through his undersigned counsel, and to the court respectfully states and prays:”
 Most legal documents request that the court do something, even if it is simply to take notice of the information therein contained. The most common exception are discovery documents, which are usually addressed to opposing parties.
 In the civil context, the complaint will generally be the only document in a case file without a certificate of service. In this context, service means to give notice of the filing to the other party. It generally means providing opposing counsel with a copy of the document by personal deliver or by mail. However, when you file a complaint, you generally do not know who opposing counsel will be, and, absent a stipulation regarding service, you the party must be officially summoned. Notice of the complaint is accomplished by summons. Rule 5(b) of the Federal Rules of Civil Procedure, governs service of documents filed after the complaint. Please note that service by mail or messenger service is generally acceptable.
 Some courts require that each document include the bar number of the attorney who signs it. In any case, counsel is generally required to include her name, mailing address and telephone numbers in the motion.