A dual approach to plain error, which of course must also apply to error properly preserved below under the rubric of harmless error analysis, has existed in Illinois for at least thirty years. The substantial right test, better called the substantial affect test, is referred to as “closely balanced” while the enunciation of what is in effect a structural error test is “error so serious that it affected the fairness of the defendant’s trial and challenged the integrity of the judicial process.”
In 1975, the Illinois Supreme Court in People v. Howell, 60 Ill.2d 117, 120-121, 324
N.E.2d 403 (1975), stated:
“[G]enerally, failure to raise an issue in the trial court constitutes a waiver and that this general waiver rule also applies to constitutional issues. We there held that Rule 615(a) does not mandate that a reviewing court consider all errors involving substantial rights whether or not they had been raised in the trial court. Rather the rule is intended as a means of meliorating the harshness of the strict application of the waiver rule. It permits the court on review to take notice of errors appearing upon the record which deprive the accused of substantial means of enjoying a fair and impartial trial and in criminal cases in which the evidence is closely balanced to consider errors that have not been properly preserved.”
The importance of the “closely balanced” criterion in determining plain error was emphasized in People v. Carlson, 79 Ill.2d 564, 576, 38 Il.Dec. 809, 404 N.E.2d 233 (1980):
“A significant purpose of the plain error exception to the waiver doctrine is to correct any serious injustices which have been done to the defendant. It therefore becomes relevant to examine the strength or weakness of the evidence against him; if the evidence is close, there is a possibility that an innocent person may have been convicted due to some error which is obvious from the record, but not properly preserved. Thus, this court has held that where the evidence is closely balanced, a court of review may consider errors that have not been properly preserved for review.”
“Closely balanced” assumes the presence of sufficient evidence from which contrary inferences can be drawn. See generally People v. Reeves, 314 Ill.App.3d 482, 247 Ill.Dec. 305, 732 N.E.2d 21 (2000). “Closely balanced” requires that the defendant show both that the error was plain and the evidence was so closely balanced that the error alone severely threatened to tip the scales of justice against him. People v. Herron, 215 Ill.2d 167, 294 Ill.Dec. 55, 830 N.E.2d 467 (2005).
In short, in Illinois error at the trial level, whether preserved or not, will result in a reversal on appeal whenever the evidence is “closely balanced” or in those exceptional circumstances where application of the plain error doctrine is necessary to preserve the integrity and reputation of the judicial process because the fairness of the trial has been undermined. People v. Lindsey, 201 Ill.2d 45, 265 Ill.Dec. 616, 772 N.E.2d 1268 (2002). The test for when error will result in reversal on appeal in Illinois is thus disjunctive.
Before an appeals court can determine if a mistake was made, it must be put in context of the trial and the court's findings. This context or legal perspective is the standard of review. Applying the right standard of review will determine how much deference (benefit of the doubt) the appeals court judge is required by law to give to the trial court's error. The level of deference is decided by the type of mistake, (law or fact) and who allegedly made the mistake (judge or jury).
|
Mistake by Who? |
Trial Type |
Mistake Type |
Deference |
Review Standard |
Review Description |
|
Judge |
Jury Trial |
Law |
1 |
de novo |
Anew, as if the trial court hadn't ruled. Little to no deference given to trial courts decision. |
|
Judge |
Bench Trial |
Fact |
2 |
Clearly Erroneous |
Some deference given, and not overturned unless it clearly in error. |
|
Jury |
Jury Trial |
Fact |
3 |
Substantial Evidence |
High deference to jury's finding. The appeals judges look to see if a reasonable mind would make the same finding, it not stands. |
|
Judge |
Either Bench |
Legal Discretion |
4 |
Abuse of Discretion |
Great deference given to judge in areas of the application of law like admittance of evidence, witnesses, etc. Only if judge clearly abused discretion, will mistake be vacated. |
As you can see by the chart, the least deference is given to the trial judge when making a mistake concerning the law, and the most deference is given to a judge when deciding judicial discretion issues like admission of evidence.
For example, if a judge ruled that a confession made by Dopey Dan while on mind-altering drugs should be considered the same as if he was of sound mind, the appeals court can easily find that the judge was wrong about the law. However, if the jury found that the signature on a receipt was made by a defendant, then more deference is given to the jury's decision, and the appeals court must find substantial evidence to overturn the verdict.
In another example, if the jury thought Hapless Hank looked just like the guy on the camera shooting a clerk, the appeals court can't overturn it, even if they think the jury was wrong. On the other hand, if Hapless Hank was 7 foot and skinny, and the person in the video, was 5 foot 2 inches and chunky, then the appeals court could find that there was substantial evidence that the jury got it wrong and can overturn the verdict. Thus, the deference the appeals court is allowed makes a difference on the likelihood that an error would be found reversible or harmless.
The plain error doctrine is an extraordinary remedy used by appellate courts to rectify errors committed at trial.[i] Plain error is of such monumental proportion that they threaten to erode the system of justice and work a serious and manifest injustice on the aggrieved party.[ii]
The plain error doctrine is reserved for truly extraordinary situations in which the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.[iii]
The plain error doctrine is not a rule of reviewability. It is a rule of reversibility.[iv] It is a doctrine that a reviewing court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment, for reasons of policy.
A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice. [v] Furthermore, even if the error is so apparent and review is afforded, the defendant cannot prevail on the basis of an error that lacks constitutional dimension if it has not affected the result of the trial.
Thus, in addition to examining the patent nature of the error, a reviewing court should examine that error for the grievousness of its consequences in order to determine whether reversal under the plain error doctrine is appropriate.[vi] A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice. Only where plain error is evidenced may an appellate court reverse a verdict in the absence of a proper objection.[vii]
The Federal Rules of Evidence state that nothing in the rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.[viii] Further, the Federal Rules of Criminal Procedure provide that a plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.[ix]
Harmless error and plain error are not the same, and the fact that an error is not harmless does not necessarily mean it is plain error.[x] Plain error is an error so grievous that it causes an actual miscarriage of justice.[xi] Reversal for plain error rule is to be used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result. This stringent standard for plain error is applied in cases involving alleged constitutional errors.
(a) By the Government. The government may, with leave of court, dismiss an indictment, information, or complaint. The government may not dismiss the prosecution during trial without the defendant's consent.
(b) By the Court. The court may dismiss an indictment, information, or complaint if unnecessary delay occurs in:
(1) presenting a charge to a grand jury;
(2) filing an information against a defendant; or
(3) bringing a defendant to trial.
NOTES-The Committee considered the relationship between Rule 48(b) and the Speedy Trial Act. See 18 U.S.C. §§3161, et seq. Rule 48(b), of course, operates independently from the Act. See, e.g., United States v. Goodson, 204 F.3d 508 (4th Cir. 2000) (noting purpose of Rule 48(b)); United States v. Carlone, 666 F.2d 1112, 1116 (7th Cir. 1981) (suggesting that Rule 48(b) could provide an alternate basis in an extreme case to dismiss an indictment, without reference to Speedy Trial Act); United States v. Balochi, 527 F.2d 562, 563–64 (4th Cir. 1976) (per curiam) (Rule 48(b) is broader in compass). In re-promulgating Rule 48(b), the Committee intends no change in the relationship between that rule and the Speedy Trial Act.
(a) In General. A party applying to the court for an order must do so by motion.
(b) Form and Content of a Motion. A motion—except when made during a trial or hearing—must be in writing, unless the court permits the party to make the motion by other means. A motion must state the grounds on which it is based and the relief or order sought. A motion may be supported by affidavit.
(c) Timing of a Motion. A party must serve a written motion—other than one that the court may hear ex parte—and any hearing notice at least 7 days before the hearing date, unless a rule or court order sets a different period. For good cause, the court may set a different period upon ex parte application.
(d) Affidavit Supporting a Motion. The moving party must serve any supporting affidavit with the motion. A responding party must serve any opposing affidavit at least one day before the hearing, unless the court permits later service.
(a) Before Submission to the Jury. After the government closes its evidence or after the close of all the evidence, the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction. The court may on its own consider whether the evidence is insufficient to sustain a conviction. If the court denies a motion for a judgment of acquittal at the close of the government's evidence, the defendant may offer evidence without having reserved the right to do so.
(b) Reserving Decision. The court may reserve decision on the motion, proceed with the trial (where the motion is made before the close of all the evidence), submit the case to the jury, and decide the motion either before the jury returns a verdict or after it returns a verdict of guilty or is discharged without having returned a verdict. If the court reserves decision, it must decide the motion on the basis of the evidence at the time the ruling was reserved.
(c) After Jury Verdict or Discharge.
(1) Time for a Motion. A defendant may move for a judgment of acquittal, or renew such a motion, within 14 days after a guilty verdict or after the court discharges the jury, whichever is later.
(2) Ruling on the Motion. If the jury has returned a guilty verdict, the court may set aside the verdict and enter an acquittal. If the jury has failed to return a verdict, the court may enter a judgment of acquittal.
(3) No Prior Motion Required. A defendant is not required to move for a judgment of acquittal before the court submits the case to the jury as a prerequisite for making such a motion after jury discharge.
(d) Conditional Ruling on a Motion for a New Trial.
(1) Motion for a New Trial. If the court enters a judgment of acquittal after a guilty verdict, the court must also conditionally determine whether any motion for a new trial should be granted if the judgment of acquittal is later vacated or reversed. The court must specify the reasons for that determination.
(2) Finality. The court's order conditionally granting a motion for a new trial does not affect the finality of the judgment of acquittal.
(3) Appeal.
(A) Grant of a Motion for a New Trial. If the court conditionally grants a motion for a new trial and an appellate court later reverses the judgment of acquittal, the trial court must proceed with the new trial unless the appellate court orders otherwise.
(B) Denial of a Motion for a New Trial. If the court conditionally denies a motion for a new trial, an appellee may assert that the denial was erroneous. If the appellate court later reverses the judgment of acquittal, the trial court must proceed as the appellate court directs.
Before ordering a mistrial, the court must give each defendant and the government an opportunity to comment on the propriety of the order, to state whether that party consents or objects, and to suggest alternatives.
(Added Apr. 22, 1993, eff. Dec. 1, 1993; amended Apr. 29, 2002, eff. Dec. 1, 2002.)
Notes of Advisory Committee on Rules—1993
Rule 26.3 is a new rule designed to reduce the possibility of an erroneously ordered mistrial which could produce adverse and irretrievable consequences. The Rule is not designed to change the substantive law governing mistrials. Instead it is directed at providing both sides an opportunity to place on the record their views about the proposed mistrial order. In particular, the court must give each side an opportunity to state whether it objects or consents to the order.
Several cases have held that retrial of a defendant was barred by the Double Jeopardy Clause of the Constitution because the trial court had abused its discretion in declaring a mistrial. See United States v. Dixon, 913 F.2d 1305 (8th Cir. 1990); United States v. Bates, 917 F.2d 388 (9th Cir. 1990). In both cases the appellate courts concluded that the trial court had acted precipitately and had failed to solicit the parties’ views on the necessity of a mistrial and the feasibility of any alternative action. The new Rule is designed to remedy that situation.
The Committee regards the Rule as a balanced and modest procedural device that could benefit both the prosecution and the defense. While the Dixon and Bates decisions adversely affected the government's interest in prosecuting serious crimes, the new Rule could also benefit defendants. The Rule ensures that a defendant has the opportunity to dissuade a judge from declaring a mistrial in a case where granting one would not be an abuse of discretion, but the defendant believes that the prospects for a favorable outcome before that particular court, or jury, are greater than they might be upon retrial.
(a) Pleadings. The pleadings in a criminal proceeding are the indictment, the information, and the pleas of not guilty, guilty, and nolo contendere.
(b) Pretrial Motions.
(1) In General. A party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits. Rule 47 applies to a pretrial motion.
(2) Motions That May Be Made at Any Time. A motion that the court lacks jurisdiction may be made at any time while the case is pending.
(3) Motions That Must Be Made Before Trial. The following defenses, objections, and requests must be raised by pretrial motion if the basis for the motion is then reasonably available and the motion can be determined without a trial on the merits:
(A) a motion alleging a defect in instituting the prosecution, including:
(i) improper venue;
(ii) preindictment delay;
(iii) a violation of the constitutional right to a speedy trial;
(iv) selective or vindictive prosecution; and
(v) an error in the grand-jury proceeding or preliminary hearing;
(B) a defect in the indictment or information; including;
(i) joining two or more offenses in the same count (duplicity);
(ii) charging the same offense in more than one count (multiplicity);
(iii) lack of specificity;
(iv) improper joinder; and
(v) failure to state an offense;
(C) suppression of evidence;
(D) severance of charges or defendants under Rule 14; and
(E) discovery under Rule 16.
(4) Notice of the Government's Intent to Use Evidence.
(A) At the Government's Discretion. At the arraignment or as soon afterward as practicable, the government may notify the defendant of its intent to use specified evidence at trial in order to afford the defendant an opportunity to object before trial under Rule 12(b)(3)(C).
(B) At the Defendant's Request. At the arraignment or as soon afterward as practicable, the defendant may, in order to have an opportunity to move to suppress evidence under Rule 12(b)(3)(C), request notice of the government's intent to use (in its evidence-in-chief at trial) any evidence that the defendant may be entitled to discover under Rule 16.
(c) Deadline for a Pretrial Motion; Consequences of Not Making a Timely Motion.
(1) Setting the Deadline.The court may, at the arraignment or as soon afterward as practicable, set a deadline for the parties to make pretrial motions and may also schedule a motion hearing. If the court does not set one, the deadline is the start of the trial.
(d) Ruling on a Motion. The court must decide every pretrial motion before trial unless it finds good cause to defer a ruling. The court must not defer ruling on a pretrial motion if the deferral will adversely affect a party's right to appeal. When factual issues are involved in deciding a motion, the court must state its essential findings on the record.
(e) [Reserved}
(f) Recording the Proceedings. All proceedings at a motion hearing, including any findings of fact and conclusions of law made orally by the court, must be recorded by a court reporter or a suitable recording device.
(g) Defendant's Continued Custody or Release Status. If the court grants a motion to dismiss based on a defect in instituting the prosecution, in the indictment, or in the information, it may order the defendant to be released or detained under 18 U.S.C. §3142 for a specified time until a new indictment or information is filed. This rule does not affect any federal statutory period of limitations.
(h) Producing Statements at a Suppression Hearing. Rule 26.2 applies at a suppression hearing under Rule 12(b)(3)(C). At a suppression hearing, a law enforcement officer is considered a government witness.
Note to Subdivision (b)(1) and (2). These two paragraphs classify into two groups all objections and defenses to be interposed by motion prescribed by Rule 12(a). In one group are defenses and objections which must be raised by motion, failure to do so constituting a waiver. In the other group are defenses and objections which at the defendant's option may be raised by motion, failure to do so, however, not constituting a waiver. (Cf. Rule 12 of Federal Rules of Civil Procedure [28 U.S.C., Appendix].), also Rule 16. Discovery and Inspection
(a) Government's Disclosure.
(1) Information Subject to Disclosure.
(A) Defendant's Oral Statement. Upon a defendant's request, the government must disclose to the defendant the substance of any relevant oral statement made by the defendant, before or after arrest, in response to interrogation by a person the defendant knew was a government agent if the government intends to use the statement at trial.
(B) Defendant's Written or Recorded Statement. Upon a defendant's request, the government must disclose to the defendant, and make available for inspection, copying, or photographing, all of the following:
(i) any relevant written or recorded statement by the defendant if:
(ii) the portion of any written record containing the substance of any relevant oral statement made before or after arrest if the defendant made the statement in response to interrogation by a person the defendant knew was a government agent; and
(iii) the defendant's recorded testimony before a grand jury relating to the charged offense.
(C) Organizational Defendant. Upon a defendant's request, if the defendant is an organization, the government must disclose to the defendant any statement described in Rule 16(a)(1)(A) and (B) if the government contends that the person making the statement:
(i) was legally able to bind the defendant regarding the subject of the statement because of that person's position as the defendant's director, officer, employee, or agent; or
(ii) was personally involved in the alleged conduct constituting the offense and was legally able to bind the defendant regarding that conduct because of that person's position as the defendant's director, officer, employee, or agent.
(D) Defendant's Prior Record. Upon a defendant's request, the government must furnish the defendant with a copy of the defendant's prior criminal record that is within the government's possession, custody, or control if the attorney for the government knows—or through due diligence could know—that the record exists.
(E) Documents and Objects. Upon a defendant's request, the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, if the item is within the government's possession, custody, or control and:
(i) the item is material to preparing the defense;
(ii) the government intends to use the item in its case-in-chief at trial; or
(iii) the item was obtained from or belongs to the defendant.
(F) Reports of Examinations and Tests. Upon a defendant's request, the government must permit a defendant to inspect and to copy or photograph the results or reports of any physical or mental examination and of any scientific test or experiment if:
(i) the item is within the government's possession, custody, or control;
(ii) the attorney for the government knows—or through due diligence could know—that the item exists; and
(iii) the item is material to preparing the defense or the government intends to use the item in its case-in-chief at trial.
(G) Expert Witnesses. At the defendant's request, the government must give to the defendant a written summary of any testimony that the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence during its case-in-chief at trial. If the government requests discovery under subdivision (b)(1)(C)(ii) and the defendant complies, the government must, at the defendant's request, give to the defendant a written summary of testimony that the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence as evidence at trial on the issue of the defendant's mental condition. The summary provided under this subparagraph must describe the witness's opinions, the bases and reasons for those opinions, and the witness's qualifications.
(2) Information Not Subject to Disclosure. Except as permitted by Rule 16(a)(1)(A)-(D), (F), and (G), this rule does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by an attorney for the government or other government agent in connection with investigating or prosecuting the case. Nor does this rule authorize the discovery or inspection of statements made by prospective government witnesses except as provided in 18 U.S.C. §3500.
(3) Grand Jury Transcripts. This rule does not apply to the discovery or inspection of a grand jury's recorded proceedings, except as provided in Rules 6, 12(h), 16(a)(1), and 26.2.
(b) Defendant's Disclosure.
(1) Information Subject to Disclosure.
(A) Documents and Objects. If a defendant requests disclosure under Rule 16(a)(1)(E) and the government complies, then the defendant must permit the government, upon request, to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items if:
(i) the item is within the defendant's possession, custody, or control; and
(ii) the defendant intends to use the item in the defendant's case-in-chief at trial.
(B) Reports of Examinations and Tests. If a defendant requests disclosure under Rule Rule 16(a)(1)(F) and the government complies, the defendant must permit the government, upon request, to inspect and to copy or photograph the results or reports of any physical or mental examination and of any scientific test or experiment if:
(i) the item is within the defendant's possession, custody, or control; and
(ii) the defendant intends to use the item in the defendant's case-in-chief at trial, or intends to call the witness who prepared the report and the report relates to the witness's testimony.
(C) Expert Witnesses. The defendant must, at the government's request, give to the government a written summary of any testimony that the defendant intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence as evidence at trial, if—
(i) the defendant requests disclosure under subdivision (a)(1)(G) and the government complies; or
(ii) the defendant has given notice under Rule 12.2(b) of an intent to present expert testimony on the defendant's mental condition.
This summary must describe the witness's opinions, the bases and reasons for those opinions, and the witness's qualifications[.]
(2) Information Not Subject to Disclosure. Except for scientific or medical reports, Rule 16(b)(1) does not authorize discovery or inspection of:
(A) reports, memoranda, or other documents made by the defendant, or the defendant's attorney or agent, during the case's investigation or defense; or
(B) a statement made to the defendant, or the defendant's attorney or agent, by:
(i) the defendant;
(ii) a government or defense witness; or
(iii) a prospective government or defense witness.
(c) Continuing Duty to Disclose. A party who discovers additional evidence or material before or during trial must promptly disclose its existence to the other party or the court if:
(1) the evidence or material is subject to discovery or inspection under this rule; and
(2) the other party previously requested, or the court ordered, its production.
(d) Regulating Discovery.
(1) Protective and Modifying Orders. At any time the court may, for good cause, deny, restrict, or defer discovery or inspection, or grant other appropriate relief. The court may permit a party to show good cause by a written statement that the court will inspect ex parte. If relief is granted, the court must preserve the entire text of the party's statement under seal.
(2) Failure to Comply. If a party fails to comply with this rule, the court may:
(A) order that party to permit the discovery or inspection; specify its time, place, and manner; and prescribe other just terms and conditions;
(B) grant a continuance;
(C) prohibit that party from introducing the undisclosed evidence; or
(D) enter any other order that is just under the circumstances.
The prosecutor’s duty to disclose information favorable to the accused forms one of the central pillars in our criminal jus- tice system. The Due Process Clause of the Fourteenth Amend- ment ensures that the accused receives a fair trial by requiring that the prosecution reveal to the accused evidence that is favorable to the accused.1 In Brady v. Maryland, the U.S. Supreme Court held “that the suppression by the prosecution of evidence favorable to an accused … violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”2 Only material, favorable evidence is subject to disclosure.3 Evi- dence is material under Brady “if there is a reasonable probabil- ity that had the evidence been disclosed to the defense, the result of the proceeding would be different.”4 The duty to dis- close under the Brady standard extends to impeachment evi- dence as well as exculpatory evidence.5 Three components or essential elements are necessary to claim a Brady violation: (1) The prosecution actively suppressed or failed to disclose evi- dence; (2) that evidence was exculpatory, mitigating, or of impeachment value; and (3) the evidence was material.6
The prosecutor’s duty to disclose favorable evidence has expanded beyond Brady at least in terms of the prosecutor’s ethical duties. Rule 3.09(d) of the Texas Disciplinary Rules of Professional Conduct provides that the prosecutor in a criminal case shall:
Make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in con- nection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor.7
Similarly, Rule 3.8(d) of the Model Rules of Professional Conduct requires a prosecutor to “make timely disclosure to the defense of all evidence or information known to the prose- cutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, [to] disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor.”8
In July 2009, the American Bar Association’s Standing Com- mittee on Legal Ethics and Professional Responsibility issued Formal Opinion 09-454, which states that a prosecutor’s ethi- cal duty under Model Rule 3.8(d) is broader in scope than the constitutional requirements under Brady v. Maryland.9 The key difference, according to the Committee, is that Rule 3.8(d) “requires the disclosure of evidence or information favorable to the defense without regard to the anticipated impact of the evi-
dence or information on the trial’s outcome.”10 In contrast, the constitutional standard is that the prosecutor only needs to turn over material evidence, which means that the trial’s out- come would likely have been different had the disclosure been made. The Formal Opinion is important for Texas prosecutors because Texas Rule 3.09(d) with respect to a prosecutor’s duty to disclose is similar to Model Rule 3.8(d). The Formal Opin- ion may serve as the basis for construing Texas Rule 3.09(d), which would expand, or at least clarify, the Texas prosecutor’s duty to disclose evidence or information favorable to the defense.
Courts, prosecutors, and attorneys should consider using the ABA’s Formal Opinion on Model Rule 3.8(d) to provide guid- ance in interpreting Rule 3.09(d). Although the Formal Opin- ion is not a paradigm of clarity, it does provide useful information on how Texas Rule 3.09(d) could be interpreted. Some issues that may be resolved by using the Formal Opinion are the following:
No. Texas Rule 3.09(a) was modeled after Model Rule 3.8(d). The drafters of Rule 3.8(d) made no attempt to codify the evolving constitutional case law.11 The ethical requirements of Model Rule 3.8(d) extend beyond the constitutional obliga- tions of Brady and its progeny.12 Consequently, Texas Rule 3.09(d) should be interpreted as requiring a duty to disclose beyond Brady.
Yes. The Formal Opinion recognizes the fact that other wit- nesses could not pick out the defendant would tend to negate the defendant’s guilt, regardless of the strength of the remain- ing evidence and even if the prosecutor was persuaded that the witnesses did not get a good enough look at the assailant to make an accurate identification.13 The Formal Opinion explains that the defense might present the witnesses’ testimo- ny and argue why the jury should consider it exculpatory.
Yes. The Formal Opinion states:
[T]he mere fact that the informant has prior convictions or is generally regarded as untrustworthy by the police would not excuse the prosecutor from his duty to disclose the infor- mant’s favorable information. The defense might argue to the jury that the testimony establishes reasonable doubt. The rule requires prosecutors to give the defense the opportunity to decide whether the evidence can be put to effective use.14
Possibly Yes. Although the Formal Opinion does not directly address disclosure prior to an examining trial, its language may be construed to require disclosure if the opinion is read in con- junction with the Colorado Supreme Court case of In re Attor- ney C.15 In Attorney C., the Colorado Supreme Court held that under Colorado Rule of Professional Conduct 3.8(d) [identical to Model Rule 3.08(d) and Tex. Rule 3.09(d)] a prosecutor is required to disclose exculpatory evidence to the defense in advance of any critical stage of the proceeding. The court rea- soned that a critical stage includes Colorado’s preliminary hear- ing.16 A preliminary hearing in Colorado is similar to an examining trial in Texas. An examining trial in Texas is a criti- cal stage of the proceedings.17 Consequently, a Texas prosecutor may be required to disclose exculpatory evidence prior to an examining trial.
Qualified No. The Formal Opinion states “[n]othing in the rule [3.08(d)] suggests a de minimis exception to the prosecu- tor’s disclosure duty where, for example, the prosecutor believes that the information has only minimal tendency to negate the defendant’s guilt, or that the favorable evidence is highly unre- liable.”18 However, under the Formal Opinion, a prosecutor’s erroneous judgment that the evidence was not favorable to the defense may not constitute an ethical violation if the prosecu- tor’s judgment was made in good faith.19
Prosecutors, however, should keep in mind that Brady and the cases that follow it do not have a good faith exception.
Questions of law, such as whether a warrant was supported by probable cause and whether contested omissions from the affidavit would negate probable cause under Franks, are reviewed de novo. United States v. Ruiz, 664 F.3d 833, 838 (10th Cir. 2012); United States v. Gonzales, 399 F.3d 1225, 1228 (10th Cir. 2005).
Like the district court, however, this Court must “accord ‘great deference’ to the probable-cause assessment of the [magistrate] judge who issued the warrant.” United States v. Pulliam, 748 F.3d 967, 970-971 (10th Cir. 2014). In light of this deference, appellate review “is limited to ensur[ing] the Government’s affidavit provided a substantial basis for the issuance of the warrant.” Id. at 971 (internal quotation marks and citation omitted; brackets in original).
This Court reviews de novo a district court’s ruling on whether a search warrant describes with sufficient particularity the things authorized to be seized. See United States v. Brooks, 427 F.3d 1246, 1251 (10th Cir. 2005), cert. denied, 546 U.S. 1222 (2006). New arguments to suppress evidence, however, “are waived absent a showing of good cause for why they were not raised below.”
United States v. Burke, 633 F.3d 984, 991 (10th Cir.), cert. denied, 563 U.S. 951 (2011); see also United States v. Bowline, 917 F.3d 1227, 1236 (10th Cir.) (holding that “Burke remains good law” after the 2014 amendment to Federal Rule of Criminal Procedure 12), petition for cert. pending, No. 19-5563 (filed Aug. 13, 2019). This “rule applies not only when a defendant fails to file a pretrial motion to suppress, but also when a defendant fails to assert a particular argument in a pretrial suppression motion.” United States v. Vance, 893 F.3d 763, 769-770 (10th Cir. 2018); see, e.g., United States v. Williams, 942 F.3d 1187, 1191 (10th Cir. 2019) (holding that the defendant’s argument regarding “the scope and duration of his laptop search * * * ha[d] been waived as it was not raised in the motion to suppress and [defendant] did not show good cause”)….
To the extent that Stein argues on appeal that the computer search authorized by the warrant was insufficiently particularized because it failed to appropriately limit the digital evidence to be seized, this is a new and distinct argument from the arguments he raised in the district court. As such, the argument is waived absent a showing of good cause, which Stein cannot establish. See Burke, 633 F.3d at 991.
Federal Rule of Criminal Procedure 12(e) provides, "A party waives any Rule 12(b)(3) defense, objection, or request [which includes motions to suppress evidence] not raised by the deadline the court sets under Rule 12(c) or by any extension the court provides." We have held under this provision, "When a motion to suppress evidence is raised for the first time on appeal, we must decline review." United States v. Brooks, 438 F.3d 1231, 1240 (10th Cir.2006); see also United States v. Buchanan, 985 F.2d 1372, 1380 (8th Cir.1993) (holding defendants must raise a motion to suppress before trial or the objection is deemed to be waived).
We have also held "this waiver provision applies not only to the failure to make a pretrial motion, but also to the failure to include a particular argument in the motion." United States v. Dewitt, 946 F.2d 1497, 1502 (10th Cir.1991); see United States v. Banks, 451 F.3d 721, 727 (10th Cir.2006) (explaining the general rule that if a party fails to raise a specific argument in a suppression hearing they waive that 988*988 argument on appeal); see also United States v. Rose, 538 F.3d 175, 185 (3d Cir. 2008) ("Under Federal Rule of Criminal Procedure 12, a federal criminal defendant is barred, absent good cause, from raising a reason to suppress evidence for the first time on appeal. This conclusion finds support in the Criminal Rules' text, their history, our Court's case law, and the policy underlying Rule 12."); United States v. Pope, 467 F.3d 912, 918-19 (5th Cir.2006) ("We have also held that failure to raise specific issues or arguments in pre-trial suppression proceedings operates as a waiver of those issues or arguments for appeal.").
We review de novo the issue of whether there is sufficient evidence to sustain a jury verdict. United States v. Voss, 82 F.3d 1521, 1524-25 (10th Cir.1996). We must examine "the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Miller, 987 F.2d 1462, 1464 (10th Cir.1993).
In reviewing the sufficiency of the evidence, we must "consider both direct and circumstantial evidence, as well as the reasonable inferences to be drawn from that evidence." United States v. Davis, 1 F.3d 1014, 1017 (10th Cir.1993) (citing United States v. Fox, 902 F.2d 1508, 1513 (10th Cir.1990)). Furthermore, it is not our duty to weigh conflicting evidence nor to consider the credibility of witnesses. United States v. Youngpeter, 986 F.2d 349, 352-53 (10th Cir.1993). In this respect, we must defer to the jury's resolution. Id. Finally, "[r]ather than examining the evidence in `bits and pieces,' we evaluate the sufficiency of the evidence by `consider[ing] the collective inferences to be drawn from the evidence as a whole.'" United States v. Wilson, 107 F.3d 774, 778 (10th Cir.1997) (alteration in original) (quoting United States v. Hooks, 780 F.2d 1526, 1532 (10th Cir.1986)).
When a motion to suppress evidence is raised for the first time on appeal, we must decline review. See United States v. Dirden, 38 F.3d 1131, 1139 n. 10 (10th Cir.1994) ("Federal Rule of Criminal Procedure 12(b)(3) requires that a motion to suppress be made prior to trial, and Rule 12[(e)] provides that failure to do so constitutes a waiver. By failing to challenge anything but the stop in the proceedings below, Dirden has waived any other challenges on appeal."); United States v. Hart, 729 F.2d 662, 665 (10th Cir.1984) (explaining that motions to suppress evidence must be made prior to trial); United States v. Bridwell, 583 F.2d 1135, 1139-40 (10th Cir.1978) ("The motion to suppress was waived by untimely filing and may not now be asserted on appeal.").[4]
[4] In several cases, we have engaged in plain-error review even after a defendant has failed to make a motion to suppress evidence prior to trial. See e.g., United States v. Meraz-Peru, 24 F.3d 1197, 1198 (10th Cir.1994); United States v. Dewitt, 946 F.2d 1497, 1502 (10th Cir.1991). However, in no case have we found plain error where the suppression claim was waived prior to trial and raised for the first time on appeal.
Although "Rule 52(b) is permissive, not mandatory," Olano, 507 U.S., at 735, 113 S.Ct. 1770 it is well established that courts "should" correct a forfeited plain error that affects substantial rights "if the error `seriously affects the fairness, integrity or public reputation of judicial proceedings.'" Id., at 736, 113 S.Ct. 1770 (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 80 L.Ed. 555 (1936); alteration omitted); see also Molina-Martinez, 578 U.S., at ___-___, 136 S.Ct., at 1342-1343. The Court in Olano rejected a narrower rule that would have called for relief only "`in those circumstances in which a miscarriage of justice would otherwise result,'" that is to say, where a defendant is actually innocent. 507 U.S., at 736, 113 S.Ct. 1770 (quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985)). By focusing instead on principles of fairness, integrity, and public reputation, the Court recognized a broader category of errors that warrant correction on plain-error review. See 507 U.S., at 736-737, 113 S.Ct. 1770.
Like the miscarriage-of-justice rule that the Court rejected in Olano, the Fifth Circuit's standard is unduly restrictive. To be sure, a conclusion that an error "shock[s] the conscience of the common man, serve[s] as a powerful indictment against our system of justice, or seriously call[s] into question the competence or integrity of the district judge," 850 F.3d, at 250 (internal quotation marks omitted), would demand an exercise of discretion to correct the error. Limiting relief only to those circumstances, however, too narrowly confines the extent of a court of appeals' discretion.
The "shock the conscience" standard typically is employed when determining whether governmental action violates due process rights under the Fifth and Fourteenth Amendments. See County of Sacramento v. Lewis, 523 U.S. 833, 847, n. 8, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) ("[I]n a due process challenge to executive action, the threshold question is whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience"). This Court has said that the "shock the conscience" standard is satisfied where the conduct was "intended to injure in some way unjustifiable by any government interest," or in some circumstances if it resulted from deliberate indifference. Id., at 849-850, 118 S.Ct. 1708.
That standard is not reflected in Rule 52(b) itself, nor in how this Court has applied the plain-error doctrine. The Court repeatedly has reversed judgments for plain error on the basis of inadvertent or unintentional errors of the court or the parties below. See, e.g., Silber v. United 1907*1907 States, 370 U.S. 717, 717-718, 82 S.Ct. 1287, 8 L.Ed.2d 798 (1962) (per curiam) (reversing judgment for plain error as a result of insufficient indictment); Brasfield v. United States, 272 U.S. 448, 449-450, 47 S.Ct. 135, 71 L.Ed. 345 (1926) (reversing judgment for plain error where the trial judge improperly inquired of a jury's numerical division); Clyatt v. United States, 197 U.S. 207, 222, 25 S.Ct. 429, 49 L.Ed. 726 (1905) (reversing judgment for plain error where the Government presented insufficient evidence to sustain conviction). The Court also "routinely remands" cases involving inadvertent or unintentional errors, including sentencing errors, for consideration of Olano's fourth prong with the understanding that such errors may qualify for relief. Hicks v. United States, 582 U.S. ___, ___, 137 S.Ct. 2000, 2000-2001, 198 L.Ed.2d 718 (2017) (GORSUCH, J., concurring).
If the government’s case against your client is built on evidence that was uncovered during the search of a residence, a vehicle, or other place or property, you need to act promptly to protect your client’s interests. One of the strongest tools you have is the motion to suppress. Texas Criminal Forms will help you work smarter and more efficiently in drafting motions to suppress and related evidentiary motions. Texas Criminal Forms explains 39 specific grounds that can be advanced in support of a motion to suppress; includes more than 30 sample forms; and offers helpful practice tips like these: [also Texas Criminal Lawyer’s Handbook]
Use general discovery motions to your advantage. Always include within your general discovery motion a request that the state make known to the defense any search and/or arrest warrants and affidavits that may be a part of the case.
Always cite Tex. Code Crim. Pro. Art. 38.23. While it is always important to cite both state and federal authority in support of your motion to suppress, the most important provision is Tex. Code Crim. Pro. Art. 38.23 (the Texas “exclusionary rule”). It is the most inclusive provision, encompassing both state and federal constitutional and statutory provisions. It covers searches and seizures by private citizens, as well as by agents of law enforcement.
File a motion in limine along with your motion to suppress. The motion in limine will help protect against use of the evidence obtained during the search until such time as the court is able to rule on the merits of the motion to suppress. Caution: The filing and granting of a motion in limine does not preserve error where the motion in limine is violated. If the motion in limine is violated, you must lodge a timely objection to preserve error.
Request a jury charge. If your motion to suppress is denied, request a jury charge informing jurors that they should disregard any illegally obtained evidence, under Tex. Code Crim. Proc. Art. 38.23, unless the state proves, beyond a reasonable doubt, that it was gathered legally.
Don’t reveal specific grounds for the motion until the hearing. Although numerous grounds can be argued for suppression of searches, it is generally better to not allege specific grounds in the motion to suppress to avoid advance warning to the prosecution of which ground(s) will be pursued at the hearing.
Consider Tex. Code Crim. Pro. Art. 18.12. The legality of a search warrant can also be litigated under Tex. Code Crim. Pro. Art. 18.12 (Magistrate Shall Investigate). The advantage to litigating the search warrant in this way might be to have the search warrant declared invalid before law enforcement has an opportunity to analyze and process evidence located pursuant to the warrant. (This method of litigating the search warrant presumes that counsel is aware of and working on the case at the time the warrant is returned.)
Attack the probable cause affidavit. If an affirmative misrepresentation is knowingly included in a probable cause affidavit, and is material and necessary to establishing probable cause, the warrant is rendered invalid. Because the case law in this area repeatedly refers to the fact that challenges to the validity of the affidavit arise out of the Fourth Amendment to the U.S. Constitution, it is essential to cite the Fourth Amendment in any objections and pleadings in these matters.
Seek the identity of an informer. File a motion to reveal the identity of an informer in every case where the state relies on information gathered from an informant, not just in drug cases. Even if the state is not ultimately required to reveal the identity, the hearing on the motion can be an excellent discovery device. It can also have the effect of inducing the state to dismiss the case or offer a favorable plea bargain. Likewise, if the affidavit alleges that the affiant received his information from a confidential informant, a motion challenging the validity of the search warrant can be used to attempt to force the state to reveal the identity of the confidential informant, by alleging that the confidential informant is a witness necessary to a determination of the motion. Modafinil online http://www.buymodafinilonlinefast.com/guide-to-ordering-modafinil-in-the-us/
Motions in limine (“on or at the threshold” or “in the beginning”) are often a trial lawyer’s best friend and “can be a potent weapon when used properly and at the appropriate stage of litigation.” David Paul Horowitz, In the Beginning … Motions in Limine, 77-MAY N.Y. St. B.J. 16, 18 (May 2005). Such motions can and should be used prophylactically to prevent an opposing party from placing irrelevant and unfairly prejudicial evidence before the jury. Too often, however, motions in limine are improvidently filed, which not only wastes time, effort, and money, but can actually hurt your client’s case. This article discusses some of the pitfalls associated with improvident motions in limine and highlights preservation issues attendant to these motions.
Motions in limine often are filed to prevent the introduction of improper evidence, the “mere mention of which at trial would be prejudicial.” Buy-Low Save Ctrs., Inc. v. Glinert, 547 So. 2d 1283, 1284 (Fla. 4th DCA 1989); accord Fittipaldi USA, Inc. v. Castroneves, 905 So. 2d 182, 187 (Fla. 3d DCA 2005). Those motions in limine should be carefully drafted to make clear precisely what evidence should be excluded and to explain with as much clarity as possible why the evidence is so prejudicial that its mere mention would be unfairly prejudicial. See Jennifer M. Miller, To Argue Is Human, to Exclude, Divine: The Role of Motions in Limine and the Importance of Preserving the Record on Appeal, 32 Am. J. Trial Advoc. 541, 547 (Spring 2009). While this should be obvious, it is unfortunately often not the case.
Instead, it is quite common to see motions in limine seeking to preclude the opposing party from generically violating a provision of Evidence Code. Similarly, many lawyers file motions seeking to exclude evidence that no seasoned trial lawyer would ever offer in evidence. Often, these motions are included as part of a massive “omnibus” motion in limine, in which the moving party seeks advisory rulings on a host of categories of evidence. See Randy Wilson, From My Side of the Bench, 59 The Advoc. (Texas) 74, 74-75 (Summer 2012). These sorts of generic motions should be avoided. Not only are they usually a waste of time and money to prepare, but such motions annoy trial judges. Id. Indeed, filing such a motion might well impair the moving attorney’s credibility when the judge disposes of the motion with a laconic: “I expect that all of the lawyers and witnesses will comply with the Evidence Code and Rules of Procedure during trial.”
There are other dangers that must be considered as well. For example, generic motions in limine may “draw the opposing party's attention to evidence or arguments which they may not have thought of before.” James J. Brosnahan, Motions In Limine in Federal Civil Trials, A.L.I.–A.B.A. Continuing Legal Educ., SJ035 ALI-ABA 857 (2001). While this may be unlikely in pattern litigation or where extensive discovery has been completed, this danger is heightened where discovery was limited or when facing an inexperienced opponent. Accordingly, tailoring your motions in limine to your particular case is critical.
Another potential pitfall is filing a motion in limine that is, in effect, an unnoticed motion for summary judgment. See Rice v. Kelly, 483 So. 2d 559, 560 (Fla. 4th DCA 1986) (cautioning “trial courts not to allow ‘motions in limine’ to be used as unwritten and unnoticed motions for partial summary judgment or motions to dismiss”). When a motion in limine disposes of an element of a party’s claim or defense, granting the motion constitutes harmful error unless the timing provision of the rule governing summary judgment is complied with and the standards for such a judgment are satisfied. See Buy–Low Save Ctrs., Inc. v. Glinert, 547 So. 2d 1283, 1284 (Fla. 4th DCA 1989); Brock v. G.D. Searle & Co., 530 So. 2d 428, 430-31 (Fla. 1st DCA 1988). Accordingly, counsel should carefully consider the actual and practical effect of an order granting a motion in limine. If, in fact, such a motion would be more fairly characterized as a summary judgment, counsel should comply with the rules governing such motions.
Further, filing a motion in limine can lull a party into a sense of complacency concerning preservation of the record. Under the Florida Evidence Code and the Federal Rules of Evidence, a “definitive ruling” on a motion in limine is sufficient to preserve an issue for appeal and a party need not renew an objection during trial. See § 90.104(1)(b), Fla. Stat.; Fed. R. Evid. 103(b). Unfortunately, the definition of “definitive ruling” was described by its drafters as being “fuzzy around the edges.” Charles Alan Wright, Kenneth W. Graham, Jr., Victor James Gold, Michael H. Graham, Federal Practice and Procedure, § 5037.15 (2d ed. 2005) (citation omitted). Accordingly, counsel must either ensure the judge makes a clear ruling or renew his or her objection at trial. See USAA Cas. Ins. Co. v. Allen, 17 So. 3d 1270, 1272 (Fla. 4th DCA 2009).
By the same token, even a definitive ruling on one ground will not be sufficient to preserve error as it relates to other bases for exclusion of evidence. Cf. Thomas v. State, 645 So. 2d 185 (Fla. 3d DCA 1994) (“In order to preserve an issue for appellate review there must be an objection in the trial court which raises the specific grounds and legal argument upon which the objection is based.”); Miller v. State, 991 So. 2d 946 (Fla. 1st DCA 2008) (recognizing that the failure to secure a ruling on a specific objection is a waiver and does not preserve the issue for appeal). For example, if you move in limine to exclude evidence as hearsay and irrelevant, and the judge overrules the motion by finding the evidence is not hearsay; you must renew your objection based on relevance at the time of trial. Similarly, if it becomes apparent that the evidence is also both unfairly prejudicial and cumulative in light of what has ensued at trial, you must object to the evidence when it is offered on these new bases, or you will have waived these objections. Your objection also will help establish prejudice on appeal, showing this is not just something appellate counsel came up with after an adverse verdict.
Along the same lines, “when an evidentiary ruling is made before trial based upon representations as to how the evidence will unfold, the judge's ruling is ‘definitive’ only as to the facts as represented.” Powell v. State, 79 So. 3d 921, 923 (Fla. 5th DCA 2012). Thus, if “the evidence introduced at trial materially differs from the pre-trial representations relevant to an issue addressed in a motion in limine, we believe it to be incumbent upon the objecting party to revisit the issue in light of the changed circumstances.” Id.
In all events, when a motion in limine is granted against you, you should proffer the evidence at trial as completely as possible. See, e.g., Aarmada Protection Sys. 2000, Inc. v. Yandell, 73 So. 2d 893, 898 (Fla. 4th DCA 2011) (“When the trial court excluded evidence, an offer of proof is generally necessary if the claimed evidentiary error is to be preserved for appellate review.”); Spindler v. Brito-Deforge, 726 So. 2d 963, 964 (Fla. 5th DCA 2000) (recognizing that, where a motion in limine is tentatively granted and the judge indicates a willingness to reconsider, a proffer of the testimony is necessary to preserve the issue for appeal). This can be done in a variety of ways – filing deposition testimony or an expert’s report, calling the witness live to answer the questions you pose, or giving a narrative of what the witness would testify to if called to the stand. And, be watchful for any evidence by the other side that may “open the door” to this previously excluded evidence.
Finally, keep in mind that many times the trial judge that hears a motion in limine will be either new to the case or generally unfamiliar with the evidence sought to be excluded. In that situation, typically the judge will deny the motion and defer ruling until he or she hears some of the evidence in trial and has a better handle on the issues. There is certainly nothing wrong with a judge’s decision to defer ruling until later in the case. See Philip J. Padovano, 2 Fla. Prac., Appellate Practice § 8:5 (2013 ed.); see also, e.g., Spindler, 726 So. 2d at 964 (recognizing that a trial court can make a tentative pretrial ruling on a motion in limine, but that the “shifting sands of trial may cause a judge to rethink an earlier evidentiary ruling based on a matured understanding of the case.”). Nonetheless, in many cases, the initial denial of the motion in limine will effectively foreclose full reconsideration of the motion, as the opposing party may convince the judge that “you’ve already considered this and denied the motion.” Having a transcript can help prevent this occurrence, but it is no guarantee. This does not mean that you should not file a motion in limine to exclude improper evidence, but you must balance the risks associated with an early denial of the motion with the benefits you might gain if the judge hears opening statement and some evidence, thereby placing the court in a better position to rule on the merits of the evidentiary issue.
In conclusion, as Judge Wilson cogently explained, motions in limine “are not motions to dismiss or motions for summary judgment, but neither are they pro forma afterthoughts.” Wilson, From My Side of the Bench, 59 The Advoc. (Texas) at 75. Rather than file scattershot motions that will annoy trial judges and might tip off the opposing party to an issue he or she overlooked, counsel should “[f]ocus on the issues that really matter to your case and how to most persuasively present them.” Id.
=====================================================================
In 1986, the United States Supreme Court issued three decisions that, taken together, effected major changes in summary judgment doctrine and practice. In Matsushita Electric Industrial Co. v. Zenith Radio Corp.,22 Anderson v. Liberty Lobby, Inc.,23 and Celotex v. Catrett,24 the Court specifically equated the standard for granting summary judgment under Federal Rule of Civil Procedure 56 with the directed verdict standard of Federal Rule of Civil Procedure 50(a). Implicitly, the Court also expanded a judge's power in the directed verdict context as well. In addition, the Court's rhetoric in these three cases changed the tone of judicial perspective on rule 56, creating a climate conducive to more frequent use and granting of the motion.25..
The Supreme Court's approach was different and departed from the traditional summary judgment methodology. To the majority, disputes over either fact existence or fact interpretation were not "genuine" within the meaning of rule 56 and did not require even initial trial proceedings unless ''the evidence [in favor of the nonmovant] is such that a reasonable jury could return a verdict for the nonmoving party."100 In other words, the judge must conclude that the fact subject to differing interpretation or the fact subject to differing claims as to its existence would be resolved favorably to the nonmovant and adequately support a verdict for the nonmovant. Prior to Liberty Lobby, most courts confined their role to merely ascertaining whether the record showed a nonfrivolous fact existence or fact interpretation dispute.101
The Supreme Court in Liberty Lobby evaluated what it felt was the probative value of the facts under interpretative debate. The Court concluded that even the glaringly bad journalistic practices that induced the circuit court to deny complete summary judgment were not, in the majority's estimation, matters that a reasonable jury could find to be clear and convincing evidence of reckless disregard.102 In other words, the Court removed from the jury one of its traditional roles in litigation-to interpret conduct and decide whether it was ''reasonable,'' ''negligent,'' ''reckless,'' "intentional," "indifferent," "fraudulent," "knowingly false," and the myriad of other fact interpretations that have traditionally been reserved to the jury pursuant to the seventh amendment and traditional federal court practice.103..
As previously discussed, Liberty Lobby was no mere clarification or refinement of federal summary judgment practice. Rather, Liberty Lobby effected a major change in federal summary judgment doctrine. In essence, the Court amended rule 56 to replace the words "genuine dispute of material fact" with words akin to "facts presented by the nonmovant of sufficient weight to convince the trial judge that he or she would not grant a directed verdict for the movant at trial." As previously noted, these phrasings and formulations of summary judgment are vastly different.
(a) Motion for Summary Judgment or Partial Summary Judgment. A party may move for summary judgment, identifying each claim or defense — or the part of each claim or defense — on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion.
(b) Time to File a Motion. Unless a different time is set by local rule or the court orders otherwise, a party may file a motion for summary judgment at any time until 30 days after the close of all discovery…..
(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.
(a) Judgment as a Matter of Law.
(1) In General. If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may:
(A) resolve the issue against the party; and
(B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue.
(2) Motion. A motion for judgment as a matter of law may be made at any time before the case is submitted to the jury. The motion must specify the judgment sought and the law and facts that entitle the movant to the judgment.
FRCP 12 is often invoked when filing a motion to dismiss. 12(b) in particularly is frequently used. All 7 sub-sections of 12(b) may be used as grounds for a motion for dismissal. These include dismissals for:
FRCP 68 contains the guidelines for a settlement offer.
FRCP 41(a) allows for voluntary dismissal, which can be filed by the plaintiff with and without a court order.
[PDF] stanfordlawreview.org - The new rule 12 (b)(6): Twombly, Iqbal, and the paradox of pleading
In another sense, however, both Twombly and Iqbal do—and if their language is to be respected, must—impose a heightened pleading standard. While neither case raises the pleading requirement for one group of cases relative to others, both raise the pleading requirement across the board, at least relative to the Conley standard. Compared to Form 11 (an embodiment of Conley) both Twombly’s and Iqbal’s complaints state a claim.93 And while the Court labels those complaints as legally, rather than factually, deficient, the fact remains that more facts would have saved them both.94 Put differently, if Iqbal had evidence of discrete instances where Ashcroft and Mueller displayed an improper motive, and Twombly had more specific evidence of an actual agreement, both cases would have proceeded to discovery. Thus, it is hard to see the call for plausibility as anything other than a heightened pleading requirement.95
On a smaller scale, Twombly and Iqbal give lower courts a tremendous power that they did not have before: the power to dismiss suits merely by labeling certain allegations “conclusory” or “legal.” After all, once an allegation is deemed “conclusory,” it is entitled to no weight in the 12(b)(6) calculus.100 Yet at the same time, the disagreement between Justices Souter and Kennedy on what constitutes a “conclusory” allegation reveals that the distinction is as manipulable as it is powerful.101
…
The majority and dissent thus differed most fundamentally on the scope of the lens used to evaluate the complaint. For Justice Souter, the wide-angle perspective was best; the complaint should be viewed holistically and consistently. To Justice Kennedy, each allegation must stand or fall on its own, with legal conclusions receiving no weight at all. Ultimately, then, the question of whether “plausibility” is a higher or lower standard of review than that under the Conley regime was, if not a red herring, at least secondary to the more contentious question of whether an allegation is “factual” or “legal.” Put differently, the key dispute in Iqbal was not about what “plausibility” meant, or about the level of factual specificity needed to satisfy the plausibility standard. The dispute was fundamentally one about process—about how to decide what goes into “plausibility” in the first place.
Crawford-El and Heightened Pleading
A little over ten years ago, the Court faced a difficult choice in Crawford- El v. Britton:102 it could uphold Conley’s application to section 1983 suits or create a heightened pleading standard to address concerns about frivolous
lawsuits and discovery abuse. In many ways, the case was similar to Twombly
and Iqbal. Yet the Court reached a different result.
Crawford-El arose from somewhat peculiar facts. The plaintiff, a “litigious and outspoken prisoner” in the District of Columbia correctional system, was transferred between several prison facilities in several different states due to
overcrowding.103 Crawford-El bounced from facility to facility, returning once
to his initial facility in Lorton, Virginia before being transferred to his final
destination in Florida. His belongings travelled separately. After Crawford-El’s second transfer out of the Lorton facility, the warden arranged for his brother to pick up Crawford-El’s belongings rather than forward them to the next destination. This decision caused a delay of several months between Crawford- El’s arrival in Florida and receipt of his belongings. Upon receiving his items, Crawford-El filed suit, alleging that the warden had deliberately misdirected his belongings in retaliation for Crawford-El’s exercise of his First Amendment rights while in the Lorton facility. By alleging First Amendment retaliation, Crawford-El converted a simple tort into a constitutional one.
After the district court denied the defendant’s motion to dismiss, the defendant appealed to the D.C. Circuit. Sitting en banc, the D.C. Circuit decided, in a fractured opinion, to impose a heightened “clear and convincing evidence” standard for evaluating the allegations of motive at the 12(b)(6)
stage.104 The problem, as the Court aptly observed, was that “an official’s state of mind is ‘easy to allege and hard to disprove,’” meaning that intentional tort
claims were “less amenable to summary disposition than other types of claims against government officials.”105 This problem came with costs: the costs, both financial and social, of subjecting government officials to trial.106
When the case arrived at the Supreme Court, it was not a clear candidate for reversal. Indeed, the Court could have tried to sustain the D.C. Circuit’s ruling by extending its earlier precedent in Harlow v. Fitzgerald.107 In that
case, the Court had faced a similar problem: under the Court’s qualified immunity precedents pre-Harlow, a plaintiff could defeat qualified immunity in two ways—by showing that the officer’s conduct was objectively unreasonable under clearly established law, or by showing that the officer had acted in bad
faith.108 But because bad faith was “easy to allege and hard to disprove,” a
mere allegation of improper motive was often enough to defeat an assertion of
qualified immunity at the 12(b)(6) stage.109 In Harlow, the Court responded to this problem by eliminating the bad faith prong of qualified immunity.110 It thus seemed at least possible that the Court would be willing to recognize the
D.C. Circuit’s heightened pleading standard in Crawford-El as Harlow’s heir.
But imposing heightened pleading in Crawford-El was much more difficult than revising the qualified immunity standard in Harlow. At bottom, qualified immunity is a judge-created doctrine.111 While the decision to redefine the
substance of qualified immunity constituted a decisive break with former precedent, that precedent carried no more weight than any other judicial opinion. To uphold the heightened pleading standard in Crawford-El would be a more profound and controversial decision; the Court would either have to redefine the underlying constitutional right as requiring more evidence of an improper motive, or create a new pleading rule out of whole cloth that would conflict with Rules 8 and 9.
To avoid these problems, the Court simply distinguished Harlow, and disavowed the heightened pleading standard applied by the lower court. The Court began by noting that nothing in Harlow affected pleading or substantive
standards for the underlying constitutional rights.112 And the Court was not willing to countenance the lower court’s extension of Harlow, partly because the Federal Rules of Civil Procedure would not permit it to.113 Instead, the
Court noted that it had repeatedly “declined similar invitations to revise established rules [like Rule 8] that are separate from the qualified immunity defense.”114 Indeed, as the Court observed, “our cases demonstrate that
questions regarding pleading, discovery, and summary judgment are most frequently and most effectively resolved either by the rulemaking process or the legislative process”; those decisionmakers would be able to evaluate the effects of the proposed standard “upon plaintiffs with bona fide constitutional
claims.”115 Rather than impose such a legislative change, the Court relied on
the discretion of district courts applying various tools to weed out frivolous claims, such as ordering a reply to the defendant’s answer, granting a motion
for more definite statement, tailoring discovery under Rule 26, and sanctioning plaintiffs for truly frivolous suits.116 After all, “[i]t is the district judges rather than appellate judges . . . who have had the most experience in managing cases
in which an official’s intent is an element.”117
I offer this extensive summary not to rehash the details of Crawford-El, but to expose the striking similarities between Crawford-El and Iqbal. In both cases, the Court confronted the “easy to allege and tough to disprove” problem created by motive-based torts. In both cases, the Court considered the option of imposing a heightened pleading standard, while also recognizing the availability of other procedural tools to weed out frivolous claims. But the two cases led to drastically different results: in Crawford-El, the Court followed its Rule 8 precedents and declined to usurp the legislative process; in Iqbal (and Twombly), the Court reinterpreted Rule 8 to dismiss Iqbal’s complaint as “implausible.”
It is difficult, if not impossible, to read Iqbal as doing anything other than calling Crawford-El into question.118 While the Iqbal Court did not even mention Crawford-El, the result of the latter opinion seems squarely in the
former’s sights.119 The labels are different—in Crawford-El, the Court rejected
a “heightened pleading standard,” whereas in Iqbal, the Court rested on the language of “plausibility.” But the suits are similar enough to make the Court’s change of course all the more striking. At bottom, in Iqbal, the Court does precisely what it declined to do just over ten years earlier: impose a higher,
almost impossible bar on civil rights plaintiffs alleging motive-based torts. 120
For while it is easy to allege motive in a pleading, it is difficult if not impossible to prove it before discovery.121