Pre-trial Motion Practices and Daubert Challenges

Pretrial motion practices; Ok. Many times I’ll get in appellate record and there‘ll be all these beautiful motions in there, and no rulings! Don’t just file those things you have to ask for rulings. You have to put em’’ in front of trial court and you have to, present your motion and you have to get a ruling or they’re no good. They mean nothing. Ok? So don’t forget to litigate them. Many of the good trial judges what they’ll do is before you know, you began a trial, they’ll go through the list of all the pretrial motions. But that’s your job as defense counsel. You need to have the list of argue motion you need to go through, create a matrix! And go through and check of was it ruled on? What was the ruling? When did he rule on it? Ok? You got to have that!

Daubert challenges; This is another problem’. Cops think they’re experts on everything. Have you all noticed that? They’re experts on everything, from sex to traffic. You know reconstruction, for accidents. I’m sure they’re experts on cellphones, they’re experts on guns, you name it, they’re experts. No they’re not! Ok? No they’re not! So you make sure whenever a state proffers a cop, or any expert for that matter. You put em’ through the hoops. You litigate your Daubert motions. You find out what exactly is this person’s expertise and what are you trying to put on? What is the state trying to prove with this witness? Ok? Or they are usurping the function of the jury? Ok? For example if a child victim witness is; telling the truth. No they can’t do that. They can’t do that. So you litigate your experts. I’ve seen all kinds of experts in records that, Sim Trocker saying,” if you’re in uniform, you are an expert.” Ok? So challenge em’. Ask em’. Do, hearing outside the presence of the jury. Make them testify to all their training and their experience and their degrees and all those stuff. And you challenge those experts because that can mean the entire case…

Read the indictment; Ok, this is very very basic. Sometimes we get so caught up in our cases we forget to go back and look at the very basic things. Watch the offence. Does it track the statute? What date is alleged? I had a case, I’m not going to say names but, it was several years ago and all 3 of the main players are district judges now. Ok? And it was a plea bargain agreement. This is back when we used to have a cut out the steps and tape em’ on. Ok? Before we had all of our computers and stuff. And so the client plead to a perfectly good aggravated assault instead of murder. Because it didn’t allege that a death occurred! Caused a death, it didn’t alleged that. Ok? That’s kind of fatal.

You know the, the idea of, well he knows what he did, he knows what we’re accusing him off. Doesn’t work! Ok? Doesn’t work! In my paper I also talked about a case called, ”bird” which was just so much fun. And was that your case Mike? Was that, that was Mikey’s case. Mike Robin’s. Ok? It was great because what they alleged was that this woman who was just a real character stole from somebody named Mike Morales. Right? But in trial they proved Wal-Mart. Right? Ok! So we, we never got, the connection between Mike Morales and Wal-Mart.

Ya’ll this went all the way up to the court of criminal appeals. Brilliant opinion by Kathy Cochran. And she said, “a rose is a rose, but it is not a pickle” that’s what written in the opinion. So, so you have to allege who it is and you have to prove who it is! So go back to your basics. Ok? If you have a law clerk or young attorney working for you, they’re probably really good at that. Go back and just compare to this statue and see what was proven. Finding of facts and conclusions of law in the paper, I’ve listed Collin versus state. If you ask for them, when you lose the motion, the trial court has to make them. And this is a beautiful thing ya’ll. Because sometimes the judge will just roll, “denied!” ok. Well you get to find out why they are denying it. Ok? You get to have them put down verbatim, why they’re ruling the way they ruled.

Ok. Which I know is a big risk. Do you really want to mandamus them? But what I would is prepare you know, a memorandum of law with your motion warrant and urge them that they have to do this. They have to do this. And you can always proffer. You know that states back their writing their findings of facts and conclusions of law. Am I right? Write your own. Put em’ in front of the judge, to see what you can get out of that. DVD and CD evidence. We had a huge problem’ again here in Bear County and especially with smaller Counties that, that I’ve practiced in as, as defense counsel getting statements that are recorded, getting interrogations that are recorded. For some reason the district clerk’s office thinks they work for the prosecutor! Have you all ever faced that? Yeah, maybe? [Giggles] for some reason they think that they are a part of the prosecution team and they may not want to give you your CDs or DVDs to look at. Ok. Well they have to! In some counties the court reporter still hangs on to them.

No, no, no, no, no! Under the court reporter manual and the rules of the appellate procedure it’s supposed to be handled by the district clerk, not the court reporter! Now those of us who are older we’ve had cases where the court reporter, you know, Emmy Lou might have it in her garage enabling taxes! Ok? And If Emmy Lou dies nobody’s going to know who that is! We have had those cases y’all! So you, as soon as you get assigned to a case if you’re doing the appeal you find out where those DVD are or CDs or VHS or cassessettees or whatever the hell they are and you make sure you have them.

When you’re at trial, when they plead for the jury, request that the court reporter take it down, Ok? Court reporters don’t want to do that. Ok? They just want to, they’ll just stop, and they’ll let, in the record it’ll show recording played. What if their recording gets lost? Or damaged! Which happens. Ok? If the court reporter takes it all down then you at least have some record of what the jury heard! You have some record! Also note on the record if you can, the little time count you know the numbers that’s the DVDs and CDs are played. So that you can, you can discuss coherently on appeal from point, 1234 to 5678 is what was played for the jury.

Does that make sense? You all getting that? Ok! Make sure that the exhibits that were given to the jury or in the record. Now something you can do. I had difficulty with the, ok I’ll say what court Mark Lujan’s court, there you go! And, his court reporter refused to let me look at the, DVDs that were, inner dent to evidence on appeal, refused! She said,” well you have get a court order from the judge” ok well its judge Lujan good luck with that! Ok? And in-between honeying and playing golf I couldn’t nail em’ down to roll on my motion. So what you can do is you file a motion with the appellate court who has jurisdiction and you get the appellate court to order the trial court to send all the original up to appellate court. Ok? It may piss off your trial court but I love it when it happens. Because they’re trying to play hard ball with you and you’re like guess what, you’re not in charge anymore the appellate court is! Exhibits go up! And the appellate courts, I’ve never had a problem’ with them letting me look at DVDs or CDs or anything like that. The court of criminal appeals would do the same thing. If they have it up there you can go to Austin and they’ll put you in a law room and you can listen to It or watch it.

For those of you who handle cases with blood evidence, you want to find out; how was that blood stored! Who took it? Did it ride around in deputy bob’s truck for 3 days? And spill allover a uniform! There is an actual innocence case on that where, the blood spilled in the back of law enforcements car when he drove for 3 days. Do you remember which one I’m talking about? I can’t remember name of it. But, that’s how the blood got on the clothes. Ok? That’s how somebody was convicted coz the blood spilled on the clothing in the back of the deputy’s jeep or whatever it was. Ok? Have any of you have been to a property room at the sheriff’s office? Ok, it looks like my teenage daughters room! Which is really scary, looks like my room, basically, you know. It’s just junk piled in there, maybe some tags, maybe in brown bags and, and I’m talking larger jurisdictions. Ok. Find out how it was stored! How did it get from point A to point B. and not just, not just TWI cases, I’m talking any kind of tangible evidence.

Where is it? Who handled it? What happened to it? Because, the character of that evidence could change by the time you get to trial. And sometimes, I know this is a little bit shocking, but the court reporters also think they’re friends of the prosecution. Has that ever happened to anybody? No! Ok Spen’s going no! Yes! You’ll notice sometimes when, when judges, and their court reporters are very protective of them I understand that. But if judges go off on the rant the court reporter may just stop typing. And none of that’s on the record. Ok? Or if the judge tells you to come up there and that chastising both of you for litigating your case or whatnot! Make sure the court reporters taking that down because a lot of times they’ll just stop typing…

A way to ensure that is you file a motion pretrial that says I want every conversation at the bench, everything said in the court room taken down. Because if you don’t as the defense then you’re, you’ve lost it on appeal. So make sure of that! Read the police report. Ok? Don’t be lazy and plead your client something that wasn’t even proving, like in the case I talked about a minute ago. Where all 3 of the players are these fantastic lawyers, they’re now district judges and somebody was asleep at the wheel! It was a murder case. He was pleading to murder but he they left out cause of the death. Ok? So you want to make sure, don’t let Barney 5 convict your client just based on speculation. Make sure they approve it. Don’t promise something to the client that you can’t deliver.

Now I’ve seen this over and over and over and it, it just drives me nuts. In state court, where people are doing just very very basic pleads and they, and, they actually get the trial court to agree that the state time will run concurrent to the federal time. You can’t promise that. Ok? Only the feds can promise that. You cannot promise that! Even if your state trial court orders that, the feds don’t care! They don’t care what your trial court ordered. That will make the plea involuntary. You can’t promise things like that. And you can’t promise where the client will be housed. And you can’t promise parole date or good time. You can, suggest or have an idea but you cannot promise, when they’ll be out like, you’ll be home by Christmas. You can’t promise that, you don’t know! Jury charges, I’m doing a full talk on that this afternoon. Request everything you want. Oops! Request everything you want in your jury charge. Use McClungs.

Don’t assume that the, the charge that the trial court has prepared for you is correct. A lot of times it says a very young attorney who has not actually practiced law out in the world, and they’re not even clear on what should go in a jury charge. Sometimes the pages get left out. Or they cut and paste and maybe they’ll paste the wrong thing in there. Maybe the law parties isn’t in there. And it’s not applicable to your case. Ask for your jury charge I had a time hopefully the night before.

Look through it anything you don’t agree with you has to object to and submit your own instruction in writing. Ok? You have to do both. Here’s a, obviously you want to object to hear or say and again in, in Bexar county and some other counties coz they, are probably mimicking Bexar county’s bad habits but they’ll say,” well were not asserting for the truth that it matters” and the trial court goes,” ok admit it” then why are they putting it in? Ok? Why are they putting it in? Challenge them! Make them tale the trial court; why they’re putting this evidence in if it’s not just pure hearsay! And I bet you lawyer young prosecutors aren’t going to be able to articulate a reason! They’re not going to be able to articulate for what purpose it admitted. For example, Impeachment. Restitution. Another court in Bear County, the same one with the translator issue, last order massive [giggles] warrens laughing over here, massive restitution! I’m talking hundreds of thousands of dollars, for everything. I’ve seen cases come out of her court where a one , a woman’s car, was, you know stolen and driven and she claims all her modeling photos and all her makeup was in the trunk. And it was worth 4 thousand dollars.

Was that your case T? And then the trial court ordered, yeah that, that our client had to pay for that, when there’s no proof of anything! Make them prove restitution. And not just to be determined at a later date. Don’t let probation do that to you. At the time of your plea you, you ask for the full amount of restitution that your clients going to have to pay. And don’t allow the prosecutors comments to serve his proof. Coz a lot of times they’re not sure.

They’re just going based on what in their file. You know have a hearing if you need to. If you don’t, the judge is going to make your client pay for his funeral pretty much! Ok motions for new trial! File pretrial motions for prosecutors not to badger the jurors after the verdict. That’s the motion that I’ve included with this paper in for this afternoon. I can’t take full credit for it. I’m sure I brought bits of pieces probably from Cynthiana, I know Jamie Blajea and different people in the community, to come up with this motion. So what it is, is that the prosecutor sometimes at the end of trial I don’t know if you all have seen this or not. But they will go back to the jurors and they will tell them; let me tell you what you don’t, you didn’t get to hear! Let me tell you what a bad creep this guy is and, and you just didn’t convict them. Well they’re poisoning those jurors for future service. Ok? So that’s what my motion is that I have with my paper today. And I believe it’s on your materials on your little thumb drives. If you file that motion. Yes sir?

Audience: is that an ethical violation?

I believe that is. Yes! It is, it is an ethical violation for prosecutors to do that. File your motion, assert your motion. If you see them doing it, go up to the trial court and make a record. Ok? Make a record! [Someone in audience coughs] ok, file your motion for new trial alleging facts and it must be verified. use the magic words of Giglio, Brady and duo process. Make bills of proof. This is kind of a interesting idea that I don’t see that often. But the court of criminal appeals again reminds us that hey! If there’s nothing in the record for us to review, we can’t reach a decision.

So, if, if, the trial court will not let you put a witness on or put on proof of something, then you can do what’s called a bi standards bill. And you literally just dictated in the record. You know, not for in the jury but, you make assure proof. Now that’s just kind of a clever way to put what you would think the witness would say. Go ahead and put that in the record if the judge won’t let you do, a hearing with that witness outside the presence of jury. Read your proffer into the record or call the witness for the proffer that they will not let you confront the jury. Ok, don’t open the door that may be the door to hell. Ok? I hate to admit it but sometimes our clients are totally forthcoming. Don’t know if you ever had that, problem’. Ok? It’s kind of like having teenagers. Ok? You any of you have teenagers or collegiate kids or no? Ok! Well I do, I have one of each and its interesting how they leave parts out of what happened. Oh you got arrested well what happened. I don’t know, I wasn’t doing anything! Ok? And your client says I wasn’t doing anything, I was just there.

Oh but the big joint you were smoking you know didn’t have anything to do with anything! [Audience laughs] ok? Or the bong in your car, or the fact that the interior of your car smelled like marijuana and you had a big pot leaf thing hanging off your, mirror. You know sometimes they leave things out.

So don’t put on broad categories of, of my clients never been in trouble before, they’re this great person like take care of their mom. Be careful with that! Because if there’s anything on your client. Ok? Any dirt on your client that you felt to find out, and it is your duty, it is your duty to find out. Ok? If there’s stuff like that then you’ve open the door. Ok? What if yours is a, sex predator from another state and you didn’t know that? And he didn’t tell you. Well that kind of blows it all out of water, didn’t that? So don’t open the door to real general things. Sex cases, Cynthia’s going to talk about that in a minute. Make the state elect which dates or acts they’re relying upon.

Ok? I’ve had cases where there like 32 different counts, of this kid getting, abused every which way possible, on every date possible. Ok? Make them elect! Make them prove it! Oh good, I’m running a little bit ahead! If you need help with things I’m always on the list serve probably more than I should be, you know I’m in my office and like, I wonder what’s on the list serve. But there are so many nuggets of wisdom on there. You’re free to email me; any of our membership will help you if you have a question. The list serve is a good way to do it or if there’s just, something you’d like to discuss more privately email one of us. If we don’t know well tell you but we can at least throw out some ideas and help you think about, you know strategy or how to attack things or where to go with things. I kind of rushed through since we’re running bit behind but if you have any questions, I’m happy to answer them. My email is I’ve had the same email for 17 years, so I’m easy to find. Feel free to email me I’m happy to help or discuss anything I can. Ok! Thank you!


Trevino versus Taylor
Trevino versus Taylor that recognizes, get this, the right to effective assistance of counsel on writ of habeas corpus. OH MY GOD! So, read it! Read it and bask in the glory of success of our great colleague Warren Wolf. Thank you for that great introduction, Warren. I’m speaking to about how to be child sexual assault case. I’m not talking about tricks, I’m talking about, hard things that you can do in any case regardless of whether, you have a very young child victim, an older victim, you have a medical evidence that’s terrible, and I in your materials I gave you, an incredibly strong resource to use.

So I’m going to start off by using some anecdotal information and then dive into the wonder, wonderful resource of I’ve provided to in your materials. Ok! So it’s not going to work. So how to beat a child sexual assault case. There are some key components in my estimation that you need to use. First, it’s a mindset. I mean, capital murder cases and child sexual assault cases have a lot in common. They’re cases that, have really tough facts, and that are very uncomfortable to try. They’re emotional! You meet this mindset that the community’s debt set against you. It doesn’t matter what you say.

As Angelo was saying in her talk; you find the clerk and the court reporter and folks who issue subpoenas they just debt set against you and often times will cut you in corners , and they make you as counsel very uncomfortable and make it difficult for you to litigate the case . So it’s hard not to go into these cases coz sort of setback on your heels. But you’ve got to grab the bull by the horns. And, get in your mind that this victim is not a victim until that’s proven. Think about it! In most of these cases we’re going to rely on the word of a child! To put someone in prison, for a very long time! So don’t forget we’re dealing with someone who doesn’t understand consequences. Come-on, doesn’t understand truth from fiction no matter how many times you ask them; do you know truth from the lie? These kids still believe in Santa Claus and, tooth fairy or magic or whatever else you like, for years to come! Often times when they’re in high school, in college still! Until that judgment center of the brain develops at 21. These folks really don’t, get it entirely.

You’ve got to challenge these folks. I’m going backwards, I see! So, how do you, what are the key components? First, as I said go after those components. Look at their motives. Look at what reality is of what they say. Dive, beneath the surface and don’t accept what prosecutors tell you of face value, what’s in the reports and statements. at face value there’s more to the story than what’s in those item’s . Look at the process. How was the person interviewed? How many times by how many people, how many, out writers that out try keep changing? Is there something wrong with the prior process? Or why didn’t, the therapists keep notes? Is there something that had changed for the story? And why? The medical examination; I’ll show you how to do a deep dive here because; I haven’t found a case yet! Not one! Where the medical examination was done correctly.

This is fertile field for all of you and the paper that I’ve given you it’s going to provide you it’s in your hands how to deconstruct these horrible cases and win them, from the people that prosecute and serve as expert witnesses in these cases in the first place. And admissibility; statements made for determining medical diagnosis, is a very fertile field. You know, who did it, is not necessary for medical diagnosis if they’re in custody and they’re far away from the kid, and don’t have access to them. What room it was in? What color they were wearing? None of that’s necessary for medical diagnosis. What if someone said to them while they were doing? Not necessary for medical diagnosis. Don’t allow this stuff in! And finally forensics. Don’t accept they’re experts and think just by cross examination alone, that you’re going to be able to beat these cases. Bring your own experts and you’d be surprised where you find them. You can find affordable experts in child sexual assault cases and I’ll go through these key components more in my speech but this is what we’re going to touch on. Welcome all of you arriving you haven’t missed anything yet. Motive. What am I talking about here? Well, I had a case, and this is what the antidotal things I’ll talk about and then get into how you deconstruct your own case. I had a case with three children, said their father had sexually assault them, and assaulted them on numerous occasions. Three victims! Do not be daunted by multiple victims.

Don’t be daunted by and I call them complainants and I call em’ complainants throughout the case and assist everyone calls them complainants. But, 3 kids, three different ones saying different things happened at different times. On the eve of trial, the client plead, with the trial lawyer. Who wouldn’t have! There are 3 individuals saying different things happened, it was tough to beat. The reality was; these girls were angry. Dad had been fighting with mom. Dad got a divorce for mom. Oh my God, dad had a new girlfriend. They were angry!

No this, I’m happy to have people join us. And I just mentioned to the folks just coming in, I’m just relaying some anecdotal strays before I dive into the deep, really, fruitful and useful information to beat these cases and y’all haven’t missed anything, we’re starting light.
So these cases, the case involved 3,3 girls. The interviews we found, and Don Flantary helped me in this case, were driven by the mother. Don noted that the first interviews were on mom’s birthday. Happy birthday to me! You know she went in and she made these complaints and she got. You know she was sort of always driving the interviews. Dad did this dad did that! And each time the case was set for trial she made a trip with these girls out of town. Well below and behold.

We took a little look behind the record and we found out dads plea was involuntary, because not a one of these girls was claiming dad had sexually assaulted them. It was mom! You know she was leading; he did this and he did that and what kids not going to agree with mom. The kids were out of town every day before the trial began, because they really didn’t have a complaint. You know getting access to those kid even if the states sitting there when you’re doing it. Getting a refusal for the interview or finding a way that you can, look behind the surface. This is a complainant. And regardless of the age of complainant, you need to advocate aggressively to access to and challenge that complainant; child or not! You know the prosecution doesn’t have trouble getting in access to the child to interview them again and ask follow up questions or find a way to do it through an advocate. You shouldn’t either. And this is exactly why. The case is Appada. Mark okada is reported or returned by the court of criminal appeals use it to get the interviews. Scratch the surface. In the Twile case the court of criminal appeal acknowledges the fact the kids have motives, and they can be teeny tiny motives; I got spanked! Dad wouldn’t take me to the movie. I didn’t get to spend the summer vacation with dad this time. Or he didn’t, show up at my ball game, when in joint visitation situations. I didn’t get a candy. The motivation for the accusation can be very small because these kids don’t know what they’re talking about and they don’t know the consequences and so you got to get access to the kids.

The Attorneys
  • Francisco Hernandez
  • Daniel Hernandez
  • Phillip Hall
  • Rocio Martinez