PG VI(E) Issue Preservation: Practice Tips.
PG VI(E)(1) Using A Mantra Motion To Preserve Without The Need Of Restating The Federal Constitutional Grounds Over And Over.
See http://www.charlessevilla.com/publications.aspx Mantra Motion (updated Dec 2005).
But see People v. Thomas (2012) 54 CA4th 908, 938:
“Even to the extent that defendant’s pretrial motion to ‘federalize’ all defense objections was granted, the effect of granting the motion was, as the trial court stated, that the trial objections would be ‘deemed to be made under both California and Federal law.’ This did not excuse defendant from the obligation of stating the specific ground for an objection in order to preserve the issue for appeal.” [Emphasis in original.]
PG VI(E)(2) Practice Tips For “Making A Winning Record.”
See http://www.charlessevilla.com/pdf/Monterey2007.pdf.
(The following Table of Contents is from attorney Charles Sevilla’s “Making A Winning Record,” which can be accessed in full by the link above.)
TABLE OF CONTENTS
INTRODUCTION
I. GENERAL TIPS ON RECORD MAKING
A. Talk to the Client
B. Know the Real Rules
1. Dealing with the Court’s Individualized Rules
C. File a Trial Brief
D. Make the Prosecutor Satisfy His/her Burden of Establishing the Relevance and Foundation for Evidence
E. React to Surprise Evidence with a Motion to Exclude, and Failing That, Ask for a Continuance
F. If You Want All the Evidence In, Remember Evidence Code §356
G. Use Offers of Proof to Make a Record of Evidence the Court Excludes
H. If You Want to Rely on an Objection of Co-counsel During the Trial, Fine, But Put in the Record That You Are Doing So
I. Know When to: Object, Ask for an Instruction and Mistrial
J. Get Rulings and Get Them on the Record
K. Always Make Penal Code § 1118.1 Motions at the End of the DA’s case in Chief
L. Don’t Endorse the Court’s General Instructions
M. Don’t Buy Into CALCRIM Unless You are Convinced It is Correct
N. Don’t Let A Court Intimidate You By Chiding that Your Argument is Frivolous Because Every Court That Has Considered it, Has Rejected it
O. Federalize Every Objection and Motion
II. RECORD MAKING ON SPECIFIC ISSUES
A. Making a Record of Batson v. Kentucky (1986) 476 U.S. 79 Challenges
1. Step One – Defense Burden
2. Step Two – Prosecutor’s Burden
3. Step Three – Court’s Burden
B. Dealing with Video and Audio Tape Prosecution Evidence
1. Get a Transcript Well Before Trial
2. Check the Transcript Against the Tape and Flag All the Objectionable Material .
3. Make a Motion to Redact
a. Expressions of the officer’s belief in the guilt of a defendant
b. Expressions by the officer that the “victim” is telling the truth
c. References to prior crimes or bad acts
4. Federalize the Motion to Redact
5. Argue That No Limiting Instruction Can Alleviate Prejudice
6. Cite the Supporting Case Law
7. Object to the Tape or Transcript Going to the Jury in Deliberations
8. All of the Above Apply to Video Interview Evidence
9. Tale of the Tapes
C. Making a Record with Evidentiary Objections: Overcoming § 352 to Get Your Evidence Admitted
1. Probative Value
2. The Constitutional Imperative
3. Judicial Mandate
4. Substantially outweighed
5. Necessitates undue consumption of time
6. Creates substantial danger of undue prejudice
7. Confusing the issues, or of misleading the jury
D. Fighting §1054 to Get Your Impeachment or Late Coming Evidence In
E. Fighting to Make a Record of the State’s Investigative Misconduct
F. Fighting to Make A Record When Your Witness No Shows
1. Invoke the Power of the Court to Enforce the Subpoena
2. If the Marshal Won’t or Can’t, Get a Continuance
3. Failing The Above, Counsel Should Have The Witness Declared Unavailable and Have Previously Testimony of the Witness Read to the Jury
G. Fighting to Make a Record of Prosecutorial Misconduct
H. Fighting to Make a Record When the Court Imposes Time Limits
I. Fighting to Make a Record of Spectator Displays before the Jury
J. Fight to Make a Record With Informants
K. Fighting to Make a Record To Exclude Prosecution Experts
L. Fighting to Make a Record With Your Defense Mental Health Expert
1. Get Relevant Information and Witnesses to the Expert
2. Preparation for Trial Testimony
3. Drawing out the Impairment and its Consequences to the Defendant
M. Fighting to Make a Record With An Eyewitness/Mistaken ID Defense
N. Fighting for Your Tailored Instructions
1. In evaluating proffered instructions, a court must view the supporting evidence in a light most favorable to the party requesting the instruction
2. Court must instruct on supported defense theories
3. Test for Giving Requested Instructions
4. A defendant need not testify to be entitled to instructions
5. The Proferred Instruction Is Not Inconsistent and, In Any Event, a Defendant Is Entitled to Inconsistent Defenses
6. Failure to instruct upon a defendant’s theory of the case supported by substantial evidence violates the defendant’s constitutional right to defend himself
O. Fighting to Make a Record on Media Misconduct by Law Enforcement
P. Fighting to Make a Record of Judicial Misconduct
III. MAKING A RECORD WITH MOTIONS FOR NEW TRIAL
A. Jury Misconduct
B. Documenting Trial IAC
C. Using the Motion for New Trial to Put in Evidence That May Be Missing from the Record
CONCLUSION
