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Motions in Limine (Trial Motions)

Motions in Limine (Trial Motions)

Some of the subjects discussed in this chapter are not necessarily the exclusive concern of those preparing for immediate trial. Many of these issues can be brought up prior to trial, but hey are listed in this section only because they relate more directly to trial than to those matters which are typically pretrial concerns.

Before you even get to trial, you must consider whether or not to exercise a peremptory challenge to the judge assigned to the DUI case. CCP § 170.6 is the controlling statute on this issue and a thorough understanding of the statute is vital.

Jury Selection and Opening Statement in California DUI Cases 

The Jury Pool

The California Supreme Court has held that the Sixth (6th) Amendment vicanage right is not encompassed by the due process provision of the 14th Amendment.

Nonetheless, CCP §191 still requires that jurors be selected at random from the population of the area served by the court.

The Voir Dire Process in California DUI Cases 

Counsel should ascertain the trial court’s policy pertaining to jury selection (clerks and court reporters can be helpful in this regard, though counsel should not be afraid to ask the judge directly).

The court conducts an initial examination of the DUI jurors, (CCP § 223), and this same statute grants it the power to limit the time attorneys are allotted for voir dire and most judges exercise this power.

However, CCP § 223 grants attorneys in criminal cases the right to conduct oral voir dire.

Therefore, a trial court cannot completely preclude DUI attorneys from conducting an examination of the jury.
Effective jury selection is crucial to any DUI defense and to the extent to which any particular judge intends to restrict counsel, counsel should be prepared to argue the issue in a reasonable fashion.

Time limits should not be permitted to foreclose thorough voir dire, and judges who unduly curtail the opportunity for proper voir dire should be reminded of the following California Supreme Court admonition:

“[T]rial courts must give advocates the opportunity to inquire of panelists and make their record. If the trial court truncates the time available or otherwise overly limits voir dire, unfair conclusions might be drawn based on the advocate’s perceived failure to follow up or ask sufficient questions. Undue limitations on jury selection also can deprive advocates of the information they need to make informed decisions rather than rely on less demonstrable intuition.”

Many judges provide a written checklist of questions that they intend to ask prospective jurors.

Many judges are receptive to the suggestions by DUI defense counsel in adding additional areas of inquiry to be made by a court or the judge.

Challenges for Cause in California DUI Cases 

Challenges for cause are of two types:

The first is to the entire jury panel, and then challenges for cause to individual jurors.

These challenges include challenges for (1) general disqualification, (2) implied bias, or (3) actual bias. See: CCP § 225(b)(1).

The second is challenges for implied bias, which are set forth in CCP § 229.

These challenges include being within the fourth degree of consanguinity to any party or witness in the case, or having stood within one year previous to filing of the complaint in the relationship of attorney and client with either an attorney or party in the case.

The final challenge for cause is for actual bias. Note that this is slightly different than the state of mind required for a challenge for implied bias for evincing enmity.

Actual bias is defined as “the existence of a state of mind on the part of the juror in reference to the case, or to any of the parties, which will prevent the juror from acting with entire impartiality, and without prejudice to the substantial rights of any party” See: CCP §225(b)(C).

Batson/Wheeler Challenges in California DUI Cases 

Both the California Supreme Court in
People v. Wheeler (1978) and the United States Supreme Court in Batson v. Kentucky (1986) have prohibited the discriminatory use of preemptory challenges against certain protected classes.

CCP § 231.5 further prohibits the use of any peremptory challenges on the basis that a juror is biased merely because of his or her race, color, religion, sex, national origin, sexual orientation, or similar grounds.

People v. Wheeler

Wheeler was based upon Article I, section 16, of the California Constitution. Although, it does not explicitly state as much, that section has been held to include the right to an impartial jury.

In Wheeler, two black men were charged with murdering a white man. The prosecutor struck every black juror from the jury. An all white jury subsequently convicted the defendants and the California Supreme Court reversed.

The Wheeler Court found that an impartial jury is one that is drawn from a cross-section of the community.

Batson v. Kentucky

Batson was based on the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

The Baston Court wrote:

“…this Court has recognized that a defendant may make a prima facie showing of purposeful racial discrimination in selection of the venire by relying solely on the facts concerning its selection in his case.”

The Baston Court further held that:

“a consistent pattern of official racial discrimination” is not “a necessary predicate to a violation of the Equal Protection Clause” and “[a] single invidiously discriminatory governmental act” is not “immunized by the absence of such discrimination in the making of other comparable decisions.”



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