The Pretrial Motions Will Go A Long Way Toward Deciding The Chauvin Case


           Trial lawyers know the significance of motions in limine; often, trials are won or lost based on the rulings judges make before a jury even hears opening statements. Two such motions in the Derek Chauvin are pivotal.

           What is a motion in limine? (Pronounced "limb-in-knee." I once heard a judge say "in-lime.' It hurt to hurt to hear that.)

           The Latin term translates as at the threshold. A motion at the threshold, then, is a request from a party for the court to rule on something before evidence even begins. Typically, a party files a motion in limine to prohibit the other side from offering evidence in the presence of the jury.

           The defense has moved in limine to prevent the prosecution from calling witnesses who would testify that based on their observations, George Floyd was not resisting during his arrest last May in Minneapolis.

           The judge should grant the defense motion to prevent this evidence. Whether Mr. Floyd resisted in this case is close to being the ultimate issue in this case. Ultimate issues are those that we ask juries in to decide. Asking a witness’s opinion on such an issue is said to invade the province of the jury.

           If Mr. Floyd resisted, then the question becomes whether the force used against him was reasonable.

           If the prosecution is smart, it will argue that testimony on whether Mr. Floyd resisted is not being offered to prove what Mr. Floyd actually did. Rather, it is being offered for the purpose of shedding light on whether a reasonable police officer would perceive Mr. Floyd resisted. That’s an entirely different question; such evidence would likely be admissible.

           This testimony could only be offered through an expert in police procedure and training. An expert is a witness, who, because of special education, training, experience or skill, knows things the rest of us don’t. Laypeople are not trained police officers.

            I can see an argument that such evidence might assist the jury in deciding whether the forced used against Mr. Floyd was reasonable.

           The judge would then have to balance the probative value of such evidence against its prejudicial effect. Is the evidence necessary? Does it have danger of confusing the jury, or of unduly influencing the jury? Evidence on police training clearly is admissible in this case. My hunch is the judge permits expert testimony on whether a reasonbale officer would perceive Mr. Floyd as resisting, but that no lay, or non-expert, testimony on the topic will be permitted.

           The prosecution has also filed a motion in limine to prohibit the defense from offering evidence that Mr. Floyd was arrested in 2019. The prosecution believes such evidence is irrelevant because there is no evidence Mr. Chauvin knew of the arrest or that it had a role in how Mr. Chauvin reacted to Mr. Floyd.
            The defense can win this motion, but, like the state, it needs to be subtle in its argument.

           The body cam videos of officers arriving to question Mr. Floyd about whether he passed a counterfeit bill are revealing. Officers approached the car in which Mr. Floyd and others sat with a gun, or guns, drawn. This is not remarkable. Cops will tell you that two of the most dangerous and life-threatening calls they make are when they respond to domestic violence calls, and when they approach folks sitting in a car. Things happen quickly. A drawn gun is a reasonable precaution.

           Almost the first words out of Mr. Floyd’s mouth were “don’t shoot me.”

           A man who had never been arrested or who had no experience with police might well respond to a drawn gun in such a manner. But a fellow previously arrested has experience with the arrest procedure, and, despite rhetoric to the contrary, knows officers don’t typically approach suspects and gratuitously start shooting.

           The defense should argue that Mr. Floyd’s experience as an arrestee sheds light on his state of mind. He simply knew better. When viewed from beginning to end, the body cams show a highly irrational man, a man who appeared incapable of following simple instructions. A key defense them is that reasonable precautions were necessary to hold an individual who was either intoxicated, disturbed, or both.

           My hunch is the judge lets this evidence, but does not permit the jury to know what the charge was on which Mr. Floyd was arrested.

           Important as these rulings are, appellate courts almost never reverse based on a disagreement with a trial judge’s ruling.
            So keep an eye on these rulings. They may well tip the balance in a case that I view as close, although I think Mr. Chauvin should be acquitted.

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Comments: (1)

  • Experts
    As you may remember I used a police use of force expert in my infamous trial. The expert taught use of force at Quantico (FBI)for some twenty years. His usual testimony was for the government/state in police shooting cases so he came to the table without the possibility of being called a professional defense witness. He knew his stuff and mesmerized the jury with his explanation. The state did not offer an expert. While Kevin Doyle and Mike Dearington did a good job on cross, they couldn't do much to diminish his expertise and opinion. Certainly the medical experts are critical witnesses, but the defense should also spend a lot of time on police training, etc on use of force. In my case the Court granted my motion in limine precluding any evidence pertaining to department regulations regarding use of force. Department regulations are for administrative hearings while criminal responsibility is measured against Connecticut's use of force statute.
    Posted on March 18, 2021 at 1:38 pm by Mike Georgetti

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