Motions and Memoranda

The following draft motions are available for your use.  All of these motions will require changes to tailor them to the facts of your specific case, so please read them thoroughly.  If you are interested in using one of these motions, please contact us to discuss how it can best be adapted to your case.   No sample motion should ever be filed "as is," or without reading the cases that the motion cites.  

If you experience problems downloading these files, try right-clicking on the download image and selecting Save Target As. . . .  If you continue to have problems, contact us.  We have provided these motions in Microsoft Word format. Please contact us if you would like a motion formatted in Word Perfect. 

Other Motions

Motion to Strike Capital Murder Charge Brought under Section 18.2-31(4)

Description:  This motion requests that the trial court strike a capital murder charge brought under Va. Code Section 18.2-31(4), the murder "in the commission of robbery" provision, on the ground that the robbery was but an afterthought to the murder.  The motion is appropriate in a case in which the defendant killed for a reason other than wanting to rob the victim--that is, a case in which the defendant had a non-robbery motive for the killing.  This motion was granted in the Daniel case in Pittsylvania County (see http://www.vc3.org/news/storydetail.asp?id=318), and the case was submitted to the jury as first-degree rather than capital murder.  Needless to say, the facts of the motion will need to be changed to conform with the facts of your particular case.  In order to make that task easier, the defendant- and fact-specific portions of the motion have been highlighted.

Brady Letter

Description: This is a sample Brady letter to the Commonwealth's attorney that makes a thorough, detailed, highly specific demand for the entire range of exculpatory, impeaching and mitigating materials, with each subset supported by relevant case law. Such letters must, of course, be adapted to the facts of each case.

Motion to Bar Tokens or Insignia from the Courtroom

Description: The motion is self-explanatory, but it depends heavily upon the factual circumstances of your case.  The more details you can add concerning the actual tokens or insignia at issue, the better.

Motion for Appointment of Expert on Prison Violence Risk Assessment

Description: This motion requests that the court appoint an expert (in this example, Dr. Mark D. Cunningham), pursuant to Ake and Husske, to perform and present a prison violence risk analysis. The motion responds to the Porter case upholding a judge's refusal to appoint Dr. Cunningham by explaining why the requested assessment is "individualized" to the offender even though it takes into account the conditions under which he will be confined if sentenced to life imprisonment, and asserts a constitutional basis, under the  Simmons v. SC line of cases, for the admission of such scientific risk assessment evidence in rebuttal to the Commonwealth's claim of future dangerousness. The motion also responds to the Morva decision by emphasizing Dr. Cunningham's ability and willingness to limit his testimony to that which is found to be admissible; thus, if the court finds parts of the testimony inadmissible, it should still appoint Dr. Cunningham and simply limit his testimony accordingly.

Motion in Limine to Bar Commonwealth Arguing Conditions of Incarceration in Closing      

Description: If the court denies permission to introduce—as rebuttal to Commonwealth's assertion that Defendant will pose "a continuing serious threat to society"—evidence of prison security and prison violence (see above) this motion submits to the court that it is improper to allow the Commonwealth to make any statement regarding conditions of incarceration in its closing argument.  This includes statements that Defendant will have a "cushy life" in prison, that s/he may escape from prison, that s/he poses a threat to staff, etc.  To permit such statements would deny Defendant's right not to be sentenced based upon information (1) that is not supported by evidence in the record and (2) which Defendant had no opportunity to deny or explain.

Motion for Appointment of Non-Mental Health Expert

Description: This motion is a generic template for the appointment of an expert witness who is not a mental health witness under 3:1. The motion begins with the constitutional bases for the appointment of expert help to an indigent defendant and ends with an outline on how to proceed. The outline suggests one way of arranging what must be argued under Husske to get an expert appointed for an indigent capital defendant.

Motion for Alternate Jurors and Additional Peremptory Challenges

Description: This motion seeks additional peremptory challenges and the appointment of alternate jurors. The motion argues that the Eight Amendment requires additional procedural safeguards because of the length of the trial and the special treatment of capital proceedings, announced in Woodson v. North Carolina, 428 U.S. 280, 305 (1976).

Motion for Change of Venue

Description: This is a sample motion for change of venue. Because an argument to change venue is an extremely fact sensitive argument, this sample motion follows an introductory section that cites the relevant law with an outline that offers some guidance as to the type of material that could be gathered and one way it might be presented.

Motion to Declare the Virginia Death Penalty Statutes Unconstitutional

This motion and memorandum raises a series of challenges to the constitutionality of Virginia's death penalty statutory scheme. Note that many of the grounds raised here should also be further preserved by narrower challenges during the course of trial and sentencing (such as requests for jury instructions, or motions in limine to bar certain testimony or argument) in order to mitigate the defects identified by this motion.

Motion for Appointment of Mitigation Specialist

Motion to Seal Mental Health Reports

Description: This motion asks the Court to seal both the defense materials and the report of the prosecution's mental health expert from the prosecuting attorneys until after the guilt/innocence phase of trial.  Virginia law forbids the use of such material by the Commonwealth except for the limited purpose of rebuttal at sentencing.  The motion argues that any other application of Va. Code § 19.2-264.3:1 violates both the defendant's Fifth Amendment right against self-incrimination and his Sixth Amendment rights to effective assistance of counsel and to a fair trial.  The motion explores procedural safeguards required by statute and case law, including the work product doctrine.  Also, please see Mark Goldsmith's Capital Defense Journal article on this topic: Ask and the Commonwealth Shall Receive:The Imbalance of Virginia's Mental Health Expert Statute.

Motion to Sentence the Capital Charge Before the Non-Capital Felonies

Description: This motion argues that when a defendant faces both a non-capital felony charge punishable by life-imprisonment and a capital murder charge: (1) the rules of the Virginia Supreme Court require that the capital charge be sentenced first; (2) sentencing the non-capital charges before the capital charges would violate the goal of an unbiased jury set forth in Yarbrough v. Commonwealth and Fishback v. Commonwealth; and, (3) sentencing the non-capital charge before the capital charge would deny defendant his right to present mitigation evidence, which is guaranteed by Lockett v. Ohio and Eddings v. Oklahoma.

Motion to Strike Dangerousness -- No Prior Record

Description: A motion to bar the Commonwealth from using the aggravating factor of future dangerousness when the defendant has no prior criminal record.