Document Category: 403

This motion argues that evidence of a client’s alleged substance use must be excluded because it constitutes impermissible character evidence under FRE 404(a), poses a high risk of unfair prejudice under FRE 403, and invites unqualified medical opinion testimony in violation of FRE 701. Citing social-science research showing that jurors associate substance use with immorality, violence, and dishonesty, the motion argues that such evidence leads jurors to condemn defendants based on stigma rather than proof of guilt, rendering the evidence unfairly prejudicial. Finally, it explains that terms such as “addict,” “dependence,” and “abuse” describe medical diagnoses that only qualified experts may offer, rendering lay testimony about addiction inadmissible.

Because each stage of Facial Recognition (FR) carries a risk of error, due process and Brady require disclosure concerning every step (pp. 6–7). The five steps are: (1) the probe photo used, (2) the database selected, (3) any photo editing performed, (4) the algorithmic search, and (5) human review (pp. 6, 9–13). The brief explains that FR has particularly high error rates when applied to people of color, women, elders, and children (p. 8). Low-quality or edited probe photos increase error (pp. 10–11), and many FR databases are skewed by overrepresentation of minorities (pp. 12–13). Algorithms operate as “black boxes” with differing reliability (p. 13), while human review is subject to the same biases as eyewitness identification (p. 13). Because the risk of error varies at each stage and may be exculpatory, defense counsel is entitled to full discovery of the FR process, including the algorithm and analyst, both of whom function as impeachable “witnesses” (pp. 26–27). Defenders can use this brief to argue for comprehensive discovery of FR methods and to frame challenges to the admissibility or reliability of FR-based identifications.

This motion argues that, in cases where the government must prove a prior conviction as an element of the offense, the trial should be bifurcated into two phases. In the first phase, the jury should hear evidence about the non-prior-conviction elements. Only if the jury returns a guilty verdict on these elements should the government be allowed to present evidence on the prior-conviction element. The motion relies on social science research demonstrating that (a) juries make propensity-based inferences when they learn about a defendant’s prior conviction; (b) these propensity-based conclusions are stronger in cases involving Black defendants due to implicit biases; and (c) limiting instructions do not effectively stop jurors from engaging in improper propensity-based reasoning. Because the prior conviction has no probative value with respect to the non-prior-conviction elements and bifurcation provides an easy way to remove the danger of unfair prejudice without compromising the prosecution’s need for the evidence on the prior-conviction element, the motion asks the court to join others around the country and split the guilt-phase of the trial into two different segments.

This motion challenges a forensic child abuse investigator’s attempt to bolster a child complainant’s credibility in a sexual assault case through testimony about Child Sexual Abuse Accommodation Syndrome (CSAAS). Drawing on social science and precedent, the motion argues that CSAAS testimony is not admissible under FRE 702 & Daubert because it is not scientifically reliable (pp. 15-19), has not been tested or subjected to peer review (pp. 19-24), and is not generally accepted (pp. 24-27). The danger of unfair prejudice also substantially outweighs any probative value such that it is inadmissible under FRE 403 (pp. 35-38), and CSAAS testimony is not helpful and improperly invades the jury’s province to determine witness credibility (pp. 38-40). The motion applies to testimony by a forensic examiner about alleged common responses of child sexual assault victims to abuse, including secrecy, helplessness, accommodation, delayed disclosure, and recantation (pp. 32-33).

This draft motion argues that physically distancing defendants from juries threatens the right to a fair trial by prejudicing jurors. Social science research suggests that physical distance subconsciously signals danger and threat [p. 1-2], and creates emotional distance that impedes interpersonal connection and understanding [p. 2-4]. Because there is no essential state reason for locating the prosecution at the table closer to the jury and there is substantial danger that distancing the defendant from the jury could unfairly prejudice him, this motion argues that both the rules of evidence and the defendant’s right to a fair trial with an impartial jury argue in favor of permitting the defense to sit at the table closer to the jury.  In cases where proximity to the jury would better serve a client’s interests, defenders can use this template to make such an argument informally to the court personnel or formally through motion practice.

This draft motion should be used to exclude a confession when police officers contaminate the confession by feeding nonpublic facts about the offense to the questioned suspect. Relying on social science research and police interrogation manuals, the motion argues that: (a) police-contaminated confessions are impermissibly coercive and result in involuntary statements (pg. 1-3); and (b) police-contaminated confessions should be excluded under Rule of Evidence 403 because their probative value is substantially outweighed by the danger of unfair prejudice (pg. 3-8).

This motion argues for the exclusion of opinion testimony by medical examiners on the manner of death in a homicide trial under both the rules of evidence and the Sixth Amendment jury trial right. It explains that medical examiners speculate as to the “manner” of death based on extraneous information provided to them, notes that these determinations are not based on science, and emphasizes that there is “no standardized or validated system” for making these judgments (pages 18-23). The motion also cites cognitive science in support of the claim that biases, including racial biases, can shape these “manner of death” determinations (pages 23-24). Attached to the motion are (1) transcripts of interviews with two medical examiners, exposing the problems with manner of death determinations; (2) an expert report and law review article detailing the cognitive science problems with these determinations; (3) the non-scientific manual used to instruct medical examiners on how to make these determinations; and (4) a letter signed by 86 forensic pathologists and death investigators about judicial misuse of manner of death determinations.

This motion relies on the Federal Rules of Evidence to argue for exclusion of expert DNA testimony about the likelihood ratio obtained using STRMix probabilistic genotyping software. Pages 5-8 describe the basic steps of DNA extraction and analysis. Pages 8-9 discuss the problems of trace DNA and the possibility of innocent transfer of DNA.  Page 11 explains how DNA analysis is less reliable when there is a complex DNA mixture and pages 12-15 discuss the danger that jurors will misunderstand (and prosecutors will misrepresent) what a likelihood ratio actually means.

This motion relies on the Federal Rules of Evidence to argue for exclusion of police testimony about the behavior of drug traffickers. Pages 13-14 rely on social science to argue that users of fentanyl, methamphetamine, and cocaine consume large quantities of each of those drugs daily to support their habit such that courts cannot infer distribution from larger amounts. Pages 15-16 collect national data to refute the suggestion that drug traffickers typically possess firearms.

This ten-page sample motion argues that judges should not consider a client’s record of prior police contacts, including arrests, that did not result in criminal convictions for purposes of sentencing because such records are (1) inherently unreliable/ambiguous and (2) likely to exacerbate existing racial disparities in the criminal legal system. The motion draws on national data and jurisdiction-specific case studies to show that people of color, particularly Black Americans, are stopped, searched, arrested, and charged at disproportionately high rates, not because of higher rates of crime commission but because of implicit bias in law enforcement. This sample motion also uses local data from Washtenaw County, Michigan, that defenders should replace with their own jurisdiction’s data when available, to demonstrate that these national trends are reflected in the defendant’s jurisdiction as well.  Data from this motion could also be useful to defenders drafting 4th Amendment suppression motions or making evidentiary arguments at trial to exclude evidence of prior police contacts.  To the extent that the court or the prosecutor bring up prior police contacts at pre-trial release hearings, this data could also be useful to argue for exclusion of prior contacts during bail/pretrial release assessments.

This amicus brief argues that the State and lower courts relied upon irrelevant, unfairly prejudicial evidence (i.e. internet search history regarding abortion, abstention from prenatal care) to “articulate a motive for a murderous act on a newborn child.” The brief discusses the unfair prejudice that flows from admission of this evidence given stereotypes about women and motherhood (pages 5-6).  It also highlights empirical research showing that abstention from prenatal care can stem from “maternity care deserts” and “limited maternity care access,” rather than “murderous” intent (pages 6-7).

This sample motion relies on social science showing that the “sex offender” label evokes strong negative emotional responses to argue that Rule 403 should prohibit all references to a client as a “sex offender.” The motion also discusses alternative labels that are less likely to evoke prejudicial responses.

This is a draft motion defenders can use to seek exclusion under Rule 403 of a co-defendant’s redacted confession that directly or indirectly incriminates your client. This motion can be used even when exclusion under the Confrontation Clause fails post-Samia (the Supreme Court’s 2023 Confrontation Clause). This motion distinguishes between the Confrontation Clause and the Federal Rules of Evidence and explains why a separate Rule 403 analysis is necessary even if the court finds no Confrontation problem (pages 8-11). It describes social science research demonstrating that (a) juries are unlikely to follow the limiting instruction to consider the co-defendant’s statement only against the co-defendant (pages 4-7) and (b) secondary confessions by a co-defendant will be weighed heavily by juries even when the co-defendant has a motive to lie or downplay their role (pages 7-8). Taken together, this research shows that the likelihood of unfair prejudice is extremely high and outweighs any interest the system may have in a joint trial, requiring either severance of the trials or exclusion of the co-defendant’s redacted confession under Rule 403.

In this amicus brief, the ACLU of Iowa relies on social science to point out that juries are likely to (a) form negative impressions of criminal defendants who are associated with rap music, (b) view rap lyrics are more truthful and literal than lyrics from other musical genres; and (c) associate those who write or perform rap lyrics with criminality and bad character.  Pages 16-32 discuss why singing along to rap music is not typically probative in a criminal case, because fictional violent imagery is prevalent throughout popular culture and media, including in hip hop and rap music, but it is a form of artistic expression rather than journalism or autobiography.  Pages 35-37 collect social science research showing the danger of unfair prejudice by noting that jurors are more likely to form negative impressions of defendants as involved in general criminal activity when defendants are associated with rap music. And pages 26-27 discuss the problematic racial justice implications of such findings given that hip hop and rap are associated with Black people and Black culture.

This brief challenges Washington Evidence Rule 609 under the Washington State Constitution and objects to the introduction of a prior robbery conviction for impeachment purposes. The brief cites research showing that the admission of prior convictions against criminal defendants has minimal, if any, probative value on the defendant’s truthfulness as a witness, and instead lowers the prosecutor’s burden because of high risk of prejudice (p. 3-7). The brief explains that the categorization of robbery as a crime of dishonesty comes from antiquated honor norms rather than social science (p. 7-9). The brief also discusses the disproportionate impact of impeachment with prior convictions on defendants of color (p. 13-16).

This motion relies on social science demonstrating the unreliability of witness attempts to identify people from surveillance videos/photographs and argues that due process and the evidence rules (Rules 602, 701, and 403) require exclusion of a police officer’s attempt to identify the defendant from a surveillance video.

Pages 2-4:  Discuss studies showing that humans are bad at matching people to images in photos/videos

Pages 4 –9:  Discuss studies showing that image quality (resolution, distance from subject, and moving versus still images), camera angle and viewpoint, lighting conditions at the time of the video or image capture, the presence or absence of obstructions to the camera’s view, and the size of the image captured all affect reliability

Pages 9 – 13: Discuss how situational factors including a lack of prior familiarity, cross-racial identification problems, and time delays between a prior exposure and the viewing of a surveillance photo/video all contribute to mistaken non-eyewitness identifications

Pages 15-16 – Discuss how these studies could also be used to (a) limit or prevent the prosecution from asking the judge/jury to compare a surveillance video/photo to the defendant, (b) obtain favorable expert testimony about the problems of non-eyewitness identification; (c) get the court to take judicial notice of these problems; (d) obtain favorable jury instructions about the problems with non-eyewitness identification testimony; (e) cross-examine non-eyewitnesses more effectively.

Draft motion arguing that finding many grams of methamphetamines does not necessarily support a conviction for possession with intent to distribute. Bottom of p. 1 through p. 3 explains that people addicted to methamphetamines use more frequently and in higher dosages than first-time users, using as much as one gram per day and rarely (but at least once) up to 15g in one day. Thus a person found with many grams of meth may only be a user rather than a dealer.  This data could also be used in other arguments, including: (1) a suppression argument that there is no probable cause to search a location for evidence of distribution when the quantity recovered or known about only suggests personal use; (2) a Rule of Evidence 403 argument limiting the testimony of a witness who wants to characterize a given quantity of meth as “a lot of drugs” or who wants to describe the client as a drug dealer or distributor; (3) a sentencing argument that a client is not as much of a danger to their community as someone actively selling drugs, despite the amount of drugs found.

The ACLU of Michigan included these reports as exhibits in its recent litigation attacking the constitutionality of Michigan’s Sex Offenders Registration Act (SORA). Does v. Whitmer (Does III), No. 22-cv-10209 (E.D. Mich.). The research cited in these reports — specifically on the low risk of recidivism among people convicted of sexual offenses and the counterproductive impact of registration/notification requirements on public safety and recidivism — could be used (1) when negotiating with a prosecutor for a plea to a non-registration offense, (2) when justifying such a plea to a sentencing judge, (3) in pre-trial release arguments, (4) in sentencing arguments where clients will be forced to register to show the onerous nature of registration, or (5) to support a motion in limine to preclude reference to a client as a “sex offender.”

(Note that the following page numbers are keyed to the page numbers in each expert report, which you can find in the middle bottom footer of each report):

Letourneau Report

Pages 2-11: Explaining through a dozen different scientific studies that sex offender registration and notification laws fail to increase community safety, do not have a general deterrent effect, and may even increase the incidence of crime by making it difficult for ex-offenders to find and maintain housing, employment, and social relationships.

Pages 11-12: Noting that researchers have found no connection between juvenile registration/notification and an increase in public safety but they have found increased incidences of attempted suicide among juvenile registrants as well as an increase in their likelihood of being victims of sexual assault themselves.

Pages 12-13: Citing research showing that 80% to 90% of adult males convicted of sex offenses are never reconvicted of a new sexual crime, including studies that debunk recidivism myths by showing rates of recidivism as low as 2-5%.

Pages 13-14: Discussing research showing that conviction offense has no bearing on recidivism risk.

Pages 16-17: Citing research showing the negative impact of registration on people’s mental health and ability to find and maintain stable housing, employment, and prosocial relationships, creating barriers for reintegration.

Pages 17-20: Discussing why the costs of implementing sex offender registration and notification laws are greater than any savings or benefits generated by those laws

Pages 21-22: Finding no correlation between failure-to-register violations and sexual recidivism

Socia Report

Pages 4-8:  Citing research showing that 90-95% of all sex crime arrests are for first-time offenders; the vast majority of sex crimes are not committed by strangers; and sex offender registration and notification laws do not reduce recidivism or make communities safer

Page 9-12:  Debunking through scientific research any suggestion that there is a high sexual recidivism rate and noting that sexual recidivism rates are actually lower than those of any other offense except murder

Pages 16-17:  Noting that language matters to public perceptions and that individuals are more likely to think negatively about someone described as a “sex offender” than someone described as an “individual convicted of crimes of a sexual nature” (this research might support a motion in limine about how clients should be described in court)

Pages 19-22:  Documenting how individuals on the sex offender registry are stigmatized in ways that affect reintegration including compromising employment and housing opportunities, as well as social support networks

Pages 22-25:  Noting that there is no consistent evidence that failure-to-register convictions predict increased sexual recidivism.

This brief argues that, contrary to stereotypes, drug use alone—even frequent or illicit use—does not necessarily indicate substance abuse (pp. 23, 28-29). Only a minority of users develop a diagnosable SUD (p. 23). A single positive drug test is insufficient to establish a SUD (p. 29). And equating substance use, even a SUD, with substantial risk of harm to a child is unsupported by the medical evidence (pp. 40-42).  Defenders can use the research collected in this brief to file motions in limine to exclude evidence of or arguments about substance use as more prejudicial than probative or to obtain expert testimony on substance use.  The research could also be useful at the pretrial release and sentencing stages to suggest that clients do not suffer from a substance abuse disorder and do not pose a danger.

This motion relies on federal rules of evidence and Daubert to argue that a physician should not be permitted to testify that a person died from an oxycodone overdose when there are alternative potential causes of death – such as cardiac arrhythmia – that have not be properly eliminated. More generally, the motion explains when doctors who rely on differential diagnosis – the process of identifying the cause of a medical problem by eliminating likely causes until the most probable one is isolated – are conducting a reliable, medical analysis versus when their analyses are compromised by cognitive biases. The social science collected in this motion would be useful to defenders challenging the validity of any causal conclusion physicians reach.

Pages 4-6 explain the differential diagnosis process and how it can lead physicians to make unreliable conclusions about cause of death.  Pages 6-17 discuss how cognitive biases like confirmation bias, role effects, the availability heuristic, and the representativeness error can infect differential diagnoses.  Pages 17-20 talk about when differential diagnoses are unreliable due to a physician’s failure to properly rule in certain causes and rule out potential alternatives.  Pages 20-24 draw analogies to the forensic sciences and argue that the physician in this case could testify that there was oxycodone in the patient’s system but should not have been able to opine with certainty that it caused the patient’s death.  Pages 24-28 explain why the doctor’s ultimate opinion invaded the province of and was unhelpful to the jury.

Details the dilemma that admitting a prior felony conviction results in: if the defendant testifies and his conviction is introduced, research shows there is a heightened risk that the jury will use the prior conviction to “draw an impermissible inference.” However, if the defendant chooses not to testify in order to prevent his conviction from being introduced, research shows people are more likely to find him guilty because he did not testify.

This brief challenges a police officer’s testimony opining that a shooter pictured in surveillance footage and the defendant were the same height.  The officer based his opinion on his visual observation of surveillance footage and measurements of the height of markings in the store. The Florida appellate court agreed that this was impermissible lay opinion testimony that invaded the province of the jury and required specialized expertise (https://caselaw.findlaw.com/court/fl-district-court-of-appeal/2076011.html).

Pages 17 – 23:  Discuss the science of photogrammetry – the process of discerning the size of objects in a photograph – and explain how estimates of an individual’s height in a photograph or video require expert calculations based on geometry, physics, and photogrammetric triangulation.  As a result, the brief argues that only a qualified expert can opine about the height of an individual in a photo or video, and a police officer’s opinion based on visual observation of the photos/video is unreliable, untethered from science, and inadmissible under both due process and evidentiary rules.

“When jurors are presented with evidence that is particularly gruesome, they are likely to experience a visceral emotionally charged feeling that leads them to be inappropriately punitive.” Incorporates studies demonstrating that exposure to gruesome evidence decreases the brain’s capacity for logical reasoning.

p. 8 – 12 outline existing research on how jurors respond to and use evidence of prior convictions. Incorporates research demonstrating that limiting instructions do not cure the prejudice, as jurors still use prior convictions as propensity evidence even when instructed not to.

p. 7-12 collect lower court cases excluding gruesome photos due to likelihood they would inflame the jury.