Legal Blog

What Is an Opening Brief in an Appeal?

Published on November 20, 2022

Video Transcript:

What is an opening brief? An opening brief is generally speaking, the first document explaining why an appeal is appropriate, and why a conviction should be overturned, or a lower court’s decision should be overturned. The opening brief is usually created after the record from the court is created. So first, the record is created in the court and then whoever is appealing will file an opening brief; a document essentially, saying here is how the judge made an improper decision or here is how my client’s rights were violated. An opening brief will describe all that.

After that, the government will have an opportunity or the opposing party will have an opportunity to reply, usually a respondent’s brief, and then there was often a reply where the person who is appealing has the last word and can say, well, the respondents brief was wrong, and here is why. So, the opening brief though, is the first primary document explaining why an appeal is appropriate, why a lower court’s decision should be overturned.

I hope this has been helpful. If you have any questions about opening briefs, call me, I’d be happy to chat with you or have another lawyer in my firm speak with you. Thank you.

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What Is a Medical Reprieve of Sentence?

Published on November 18, 2022

Video Transcript:

What is a medical reprieve of sentence? A medical reprieve of sentence is essentially a cutting short of a person’s sentence for medical reasons. I’m an appeals lawyer. I handle all types of executive clemency applications, and this is essentially what it is: You’re applying to the governor. You’re saying, this person has this medical condition, or this person is in danger because of their medical condition, or this person otherwise needs to be released from prison because of some medical-related circumstance.

Maybe they had a compromised immune system, maybe they’re very old and are diagnosed with some ailment, maybe they are an increased medical risk because of whatever medical condition they have due to the confined quarters of the prison. So, a medical reprieve of sentence is asking for the governor to cut short a person’s sentence based on their medical condition.

Now, generally speaking, it’s also helpful if they have good behavior in the prison, and if somebody is stabbing guards left and right, they’re not going to get any help from the governor. But it’s primarily focused on their medical condition and how it is fair and appropriate for them to get out of prison earlier than they would normally get out of prison in order for them to receive the medical treatment that they need or to be in a safer condition.

If you have any further questions about a medical reprieve of sentence, or anything else about criminal appeals, I’d be happy to speak with you. You’re welcome to call me or call one of the other lawyers at my firm. Thank you. Take care.

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What Is a Commutation of Sentence? How to Win?

Published on November 9, 2022

Video Transcript:

What is a commutation? A commutation of sentence? Well, I’m an appeals lawyer, a criminal appeals lawyer and I apply for commutations of sentence all the time for my clients. I’ll tell you what it is and I’ll tell you how to try to win them. What it is? It is a shortening of sentence from the governor or from the president. Every State’s Governor has certain executive privileges, and in most states the governor has the power to commute or cut short a person’s sentence. The United States President also has the power to commute or cut short a person’s sentence. Now, state governors have the power to commute sentences on state crimes. The president has the power to commute sentences on federal crimes. Most crimes are state crimes. Murder, robbery, attempted murder, shoplifting, all sorts of things, most of them are state crimes, and so, if someone’s been convicted of a crime, usually it’s a state rime. So, a commutation of sentence is a cutting short of that sentence so the person can get out of prison earlier.

The second question is how to win? How to win a commutation of sentence? And the main way to win is to show good character, show that the person deserves a commutation, deserves a shorter sentence. Most people who are commuted admit that they did the crime, and so, it’s not a question of whether they’re innocent or there’s a problem with their conviction, but rather they show good character, they show that they’re a person who deserves to be released early. They’ve done well, in the prison, they’ve been in programs in the prison, educational programs, rehab programs, they’ve helped other inmates and very importantly, often that they have a game plan for when they get out of prison. They can support what they’re saying, I want to work in a certain place and I have a job offer letter. I’ve family who say they’re going to house me, so I’m not going to be homeless in the streets. So, showing that the person morally deserves this and we’ll be able to reintegrate in society, that is really how to win a commutation application.

I hope this has been helpful if you have any questions about commutations or executive clemency or any other type of appeal, call me, I’d be happy to chat with you or have another lawyer in my firm speak with you. Thank you.

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California AB 2799 — Excluding Use of Rap Lyrics Against Defendant

Published on October 6, 2022

Effective September 30, 2022, prosecutors will be limited in their ability to use rap lyrics against criminal defendants to show a propensity for violence or for committing crimes or as character evidence. The California “Decriminalizing Artistic Expression Act,” AB 2799, amends evidence rules in criminal proceedings and gives judges direction on how to determine whether the “probative value” (whether the evidence establishes a fact relevant to the crime charged) of using artistic expression against the defendant outweighs the risk of prejudice and bias that can arise from the use of artistic expression, such as rap music, to prove that a person is guilty of a crime.

Although the Act is not limited to rap music, the motivation for passing the act was the increasing use of rap lyrics against defendant of color, which endorses stereotypes and increases the risk of juror bias against them.

Use of artistic expression against a defendant is not entirely prohibited, but its introduction is limited. A judge, in determining whether the probative value of the evidence outweighs the “substantial danger of undue prejudice,” must first recognize that the probative value of creative expression for its truth is minimal unless that expression meets specified conditions. While this does not create a presumption that the expression cannot be used, it is significant that the court must start its analysis with the fact that the value of using expression for “literal” truth is minimal.

The court is also required to consider the danger of bias against a defendant and must hear testimony (if offered) on the genre of creative expression, including the context of such expression, and on research demonstrating that the introduction of a particular type of expression introduces bias into the proceedings. Such testimony must be presented outside the presence of a jury to avoid potential prejudice.

Artistic expression may, however, sometimes be used as evidence of a defendant’s guilt, but only when the expression was “created near in time to the charged crime or crimes, bears a sufficient level of similarity to the charged crime or crimes, or includes factual detail not otherwise publicly available.”

AB 2799 is a victory for criminal defendants, especially rap musicians, in that it expressly limits the use of artistic expression to demonstrate the bad character of the defendant or to show that he or she has a propensity to commit violence or engage in crimes. Eliminating bias and stereotyping is crucial to a fair trial, and defendants have one more protection against the introduction of evidence against them that is unrelated to the underlying facts of the crime.

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Spolin Law P.C. Seeks Compassionate Release for Clients After California AB 960 Becomes Law

Published on October 6, 2022

Recently passed California AB 960 gives inmates with serious illnesses and other medical conditions new opportunities for resentencing and compassionate release.

AB 960 attorney Aaron Spolin and his award-winning legal team are ready to file applications to seek compassionate release for clients. We know that you want to be home with your family, and our goal is to help you return to a more normal life. Call us today at a class=”ibp” title=”Call Spolin Law P.C. Today!” href=”tel:866-963-7561″>(866) 963-7561 to find out if you qualify for AB 960 relief.

What Is AB 960?

In a triumph for incarcerated persons who seek release from prison due to a serious medical condition, California passed Assembly Bill 960, effective September 29, 2022. Now, inmates with serious and advanced illnesses that have end-of-life trajectories and other serious medical conditions may be eligible for resentencing and compassionate release.

Who Is Eligible for Compassionate Release Under AB 960?

The old law allowed the release of prisoners only if they were diagnosed with a terminal illness likely to result in death within 12 months or if they required 24-hour care. Now, if an inmate has a serious and advanced disease or medical condition with an “end-of-life trajectory” or is found to be permanently medically incapacitated, they may be eligible for compassionate release.

Inmates no longer must prove that they require 24-hour total care requirement. Compassionate release is available for people with functional impairments resulting in the permanent inability to complete one or more activities of daily living as well as those with progressive dementia.

AB 960 Recall or Resentencing Process

A critical feature of the new law is that it requires the California Department of Corrections and Rehabilitation (CDCR) to recommend recall or resentencing for someone who meets the medical criteria for resentencing. The law also requires that a hearing must be held within 10 days of the recommendation of the Department to avoid delays in release.

Presumption of Eligibility

The new law creates a presumption that a person who meets the medical criteria will be given compassionate release unless they pose an unreasonable risk of danger to public safety.

Right to Legal Counsel

Indigent incarcerated persons referred to the court for recall and resentencing under these provisions are entitled to appointed counsel to handle their hearings.

There may be some complications with the CDCR recommending inmates for resentencing and compassionate release. Further, prosecutors may claim compassionate release is inappropriate due to risk to public safety. It’s important that you work closely with a post-conviction relief attorney who can help you navigate the AB 960 hearings.

Contact an AB 960 Lawyer at Spolin Law P.C.

Compassionate release for serious medical conditions has long needed an overhaul. With the changes in the definition of medical conditions that qualify for resentencing and release and the new procedures for speeding the process along, more inmates who deserve compassionate release will be able to get it.

The award-winning legal team at Spolin Law P.C. is ready to file applications for resentencing and compassionate release under AB 960. Our lead attorney Aaron Spolin has extensive experience getting successful outcomes for clients like you. Call us today at (866) 963-7561 to learn more about your options for compassionate release under AB 960.

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What Is a Case Review?

Published on August 23, 2022

Video Transcript:

Many clients ask me about the case review. What is it? What does it involve? So, I thought I’d answer the four most common questions I get. What is the case review? That’s number one. Number two, what records are reviewed? Number three, how unique is each case review? And number four, is it necessary? Is it necessary before doing any appeal?

So, the first question is, what is a case review? Well, a case review is a review of a client’s case, to see what the issues are, what the possible avenues for appeal are. It’s in great part for me to get to know the person’s case so I can know what’s available. So that’s essentially what it is. It usually ends with a written report, but not always. So that’s what a case review is.

The second question is, what records are reviewed? Typically, I like to get as much as I can but usually, I can see very early which records will be relevant and I typically review the records that are relevant to the appeals options. For example, if someone was just convicted and just sentenced five days ago, then the transcripts from the court are going to be very, very important because the direct appeal is typically an option right after somebody is sentenced, after they are convicted. Whereas somebody who may have been convicted, let’s say 20 years ago, and they’ve tried all their normal appeals, and now they’re coming to me because a witness has recanted the testimony or there’s DNA evidence showing the person’s innocence or something that’s not really related to the transcripts, well then, I would review the other material. So, I review the material that’s relevant, not necessarily every document that was ever produced in a case.

The third question is, how unique is each case review? Each case review is unique. It shows what is available for that particular client, but there is also going to be material that might overlap with another client, for example, background material. If I’m explaining what is a certain type of appeal, what is a Writ of Habeas Corpus in this state, what is a direct appeal, I’ve had to the best of my ability formulated the best articulation of what that is, and that’s going to apply to multiple different people. But of course, then the application to a particular client; that would be unique. Another example might be, there could be multiple clients in similar circumstances who have the same general types of options available to them. For example, someone in a particular state out of a particular county who was convicted at a particular time, and their sentences craft in a certain way, they might have similarity to somebody else who has those exact same circumstances. But generally speaking, it is unique to that person. But also remember one other thing which is the case review is a little bit for the client, for them to know what’s available, but it’s also in great part for me to know about the person’s case. My goal for the case review is not just to share what’s available, but for me to become a little bit of a mini expert in the case. So, me reviewing the relevant records, reading about the case, communicating with the client, that helps me to get in a position where I can say, okay, I feel like I know, you know, level 1 on this case, ready to move on if that’s what the client would want.

The fourth question is, is a case review necessary? No, it’s not necessary. What I would do for a case review is what I would do when I would start any type of appeal anyway. I would get the relevant records, I would become familiar with the case, and that would help me to do whatever type of appeal is appropriate. So, the case review is usually a good first step, because I would be doing it anyway, doing some other appeal. And it’s also a good first step because sometimes an individual might think well, they’re really a great candidate for this new law, they’ve been hearing about it, they’re a great candidate for this thing the jailhouse lawyer has been talking about, but is that really true? So, I can do a review to tell a client, you know this might be a good option, this might not be a good option. I know you’ve come to me and you want to do XYZ type of appeal, but that’s not going to work. So, it’s helpful to do a review so I can share what is realistic, what actual options are. Some clients come to me and they say you know what, I know that I want this type of appeal, I know that I want, you know, a writ of habeas corpus, I was innocent, here is the evidence, and just, I don’t care about anything else. Fine, and I can do that. So, no, a case review is not necessary. I recommend it, but it’s definitely not necessary.

Any other questions, you’re welcome to call me. You’re welcome to call another lawyer at my firm. I hope this has been helpful. Thank you.

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California Supreme Court Rules SB 1437 May Apply to Some “Special Circumstances” Murder Cases

Published on August 17, 2022

Senate Bill 1437 was passed in 2019 to allow individuals convicted of certain murder charges to get a reduced sentence. On August 8, 2022, the California Supreme Court decided in a case called People v. Christopher Strong that some special circumstance findings in murder cases do not automatically preclude defendants from resentencing relief under SB 1437.

Who Is Eligible for SB 1437 Relief?

You may be eligible for a reduced sentenced under SB 1437 if you were convicted of felony murder, special circumstances felony murder, manslaughter, or attempted murder. You can be eligible if you accepted a plea offer or were convicted by a jury.

The law applies retroactively to anyone who has already been sentenced as well as new cases, if the following apply:

  • The defendant was not a substantial actor in the murder; and
  • The defendant did not “act with reckless indifference to human life.”

Specifically, the defendant must have been convicted under the accomplice liability theory for felony murder or natural and probable consequence doctrine.

Originally, people who were convicted of “special circumstance” felony murder had petitions denied or stayed because of the special circumstances of their case. However, with the Strong case ruling, the California Supreme Court held that special circumstances do not automatically bar defendants from seeking SB 1437 relief to vacate a conviction and get resentenced to achieve a reduced sentence.

What Is Special Circumstance Felony Murder?

A felony murder is a homicide that occurs while the defendant was committing or attempting to commit a felony crime. The attempt or commission of the felony is often the special circumstance under which the killing occurs.

To be charged with special circumstances felony murder, the defendant does not have to have personally committed the felony. Aiding and abetting a felony or conspiracy to commit a felony may also be considered special circumstances. Intent to participate in committing the felony is enough to get a special circumstances felony murder conviction.

Special circumstance murder is often called “capital murder” as it can result in the death penalty. A person convicted of special circumstance murder may also be sentenced to life in prison without the possibility of parole (LWOP).

Factors Considered to Determine Eligibility for Resentencing

When determining if an individual is eligible for resentencing under SB 1437, the court will consider if the defendant was a substantial actor in the homicide or if they acted with reckless indifference to human life as described on California Pen. Code §190.2(d).

In the Strong case, the jury found true that Mr. Strong was a “major participant” who acted “with reckless indifference to human life.” However, the California Supreme Court found that this decision was made before clarifying guidance had been issued in two other cases: People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522.

Those factors considered by the court include, but are not limited to the following:

  • Role of in planning the crime that led to the deaths
  • Role in supplying, using, or knowledge of lethal weapons
  • Awareness of dangers posed by the nature of the crime
  • Experience with or conduct of other participants
  • Physical presence at the crime scene
  • Opportunity to restrain or stop codefendants
  • Aid provided to the victims
  • Efforts to minimize risks of violence during the felony
  • Duration of the felony
  • Knowledge of likelihood of killing

Thus, even if you were found to be a major participant who acted with reckless indifference to human life, you may now be eligible for relief under SB 1437 according to these new court rulings.

What Laws Did SB 1437 Change?

SB 1437 amended California Pen. Code §188 and §189 and created Pen. Code §1170.95. These laws define certain terms associated with murder charges and established who is eligible for resentencing under the new law.

Soon after SB 1437 was passed, the California Legislature passed SB 775, which expanded eligibility of resentencing to people who were convicted of manslaughter under the felony murder theory or natural and probable consequences doctrine as well as attempted murder under any theory in which malice is imputed solely based on participation in the crime.

How a Top SB 1437 Lawyer Can Help You

If you were convicted of special circumstances felony murder or another eligible offense, you should immediately contact Los Angeles criminal appeals attorney Aaron Spolin. As an award-winning defense attorney, he knows the law and can apply it to your case.

When you contact Spolin Law P.C., our appeals team will investigate your case and obtain your trial records. We will determine if you are eligible for SB 1437 relief and help you file a P.C.

1170.95 Petition to get your sentence reduced. This law applies retroactively, including to those that have already been sentenced.

Call our post-conviction and appeals law firm today at (310) 773-0881.

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Fighting for a New Law, Spolin Law Lawyers Celebrate Another Win in State’s Highest Court

Published on August 1, 2022
California Supreme Court Document (June 29, 2022)

The client’s family was overjoyed to read the court’s decision. In one sentence the California Supreme Court overturned months of lower court mistakes.

The Spolin Law attorneys and staff celebrated another major win for one of their clients. The California Supreme Court overturned a prior decision on the case, handing a meaningful victory to the firm’s client. All seven members of the California Supreme Court signed on to the decision.

The case revolved around a recent State Senate Bill, SB 775, which had modified the law regarding murder. The client was entitled to benefit under that bill, but the lower court (the California Court of Appeal) did not allow the client to benefit even though they issued their decision several months after the new law went into effect.

Attorneys Aaron Spolin, Caitlin Dukes, and Jeremy Cutcher had represented the client in the state’s highest court. They argued that, not only does he qualify under the new law, but he was also entitled to have his murder conviction overturned based solely on an old law (SB 1437) that had been passed several years earlier.

In short, the lawyers argued that the client actually had no intent to cause the death of another human being, despite having been convicted of murder. Furthermore, the client had not acted with “reckless indifference to human life,” which was an element of the legal standard.

The firm manager quickly distributed the decision around to the firm’s employees when it arrived in the mail. And of course, the client and his family were informed of the great news and sent a copy of their own.

For further questions about this case or other criminal appeals cases across the country, call one of the firm’s attorneys or staff members at (866) 716-2805.

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7 Best Pre-Trial Motions That Will Help You Overturn a Conviction on Appeal

Published on May 31, 2022
Attorneys at Spolin Law P.C. having a discussion | Spolin Law P.C.

The criminal appeals lawyers at Spolin Law P.C. review every error made by defense attorneys and the trial court to get a conviction overturned.

A criminal defense attorney doesn’t automatically begin thinking about appealing a conviction that hasn’t even happened yet. However, the best criminal defense lawyers are aware of the need to preserve issues for appeal by filing certain motions, objecting to motions, and presenting evidence or testimony at trial. In some cases, issues must be raised before trial even begins.

To overturn a conviction on appeal because of an error in a trial court ruling, an appellate attorney must show that the error infected or changed the outcome of the trial. Not just any error will do. The pre-trial motions discussed below set up an appeal by presenting requests that, if denied, may change the fairness or outcome of the trial.

When you hire the award-winning criminal appeals lawyers at Spolin Law P.C., we will evaluate every motion that was made or should have been made in your case. Our legal team will identify legal errors that can effectively get your conviction overturned.

Call us today to learn about your options for relief: (310) 424-5816.

1. Motion to Dismiss

A motion to dismiss an indictment or case against a defendant is a powerful basis for an appeal. When a court denies a pre-trial motion, the defendant usually has to show that they were prejudiced by the denial. Denial of a motion to dismiss has obvious prejudice: the defendant would never have been tried had the motion been granted. The appellate court’s reversal of a denial would require overturning a conviction.

A motion to dismiss may be based on numerous grounds, including the following.

Constitutional Issues

  • If the evidence used to support the indictment or information was obtained in violation of the defendant’s Fourth Amendment right against unlawful searches or seizures, the indictment should be dismissed.
  • Likewise, if the state interrogates a defendant but failed to give Miranda warnings or continued questioning following the defendant’s invocation of their right to remain silent or their right to counsel, the interrogation violates the defendant’s Fifth Amendment rights and any information obtained cannot support the indictment.
  • The defendant may also file a motion to dismiss based on violation of their Sixth Amendment or state right to a speedy trial. While the federal constitutional standards for finding a violation of this right are based on consideration of a variety of factors, many states have statutes that specify the time in which a defendant must be tried following arraignment. If these speedy trials rights have been violated, a motion to dismiss should be granted.
  • A motion to dismiss based on violation of the Fifth Amendment’s prohibition against trying a person twice for the same crime (“double jeopardy”) should be granted if it appears that the defendant was acquitted of or convicted of charges arising out of the same facts as the present charge.
  • Another issue that may arise concerns the constitutionality of the statute under which the defendant is charged. A defendant may not be tried and convicted of an offense if the statute defining the offense is unconstitutional, for example, overly broad or vague. A defendant may seek to have such a case dismissed by filing a pre-trial motion. In some states, the statute’s constitutionality is challenged through a demurrer, the overruling of which supports an appeal to challenge the validity of the law and the trial.

If the defendant raises a constitutional objection as outlined above to their indictment or trial in a pre-trial motion and the motion is denied, a successful appeal will overturn the conviction.

Validity of the Indictment or Information

An indictment may fail to allege all the elements necessary to state a crime or to support the charge against the defendant. If the indictment fails to allege intent or knowledge, for example, and those elements are part of the crime charged, the indictment is faulty and should be dismissed. In some states, the failure of the indictment to allege all necessary elements is not accomplished with a pre-motion but with a demurrer, which serves as a challenge to an indictment. If a trial court overrules a demurrer, the defendant may raise that issue on appeal.

Statute of Limitations

Most states have laws that limit the time in which the state may charge the defendant with a certain crime. If the statute of limitations has passed, the defendant may not be tried. A motion to dismiss based on the limitations period, if denied, may be appealed, and could result in the case being overturned.

Lack of Jurisdiction over the Defendant or the Case or Improper Venue

Jurisdiction over the case and the defendant must exist before a trial is valid. Likewise, the case must be brought in the proper venue or court.

A state court may lack jurisdiction over the case if the allegedly unlawful act was a violation of federal rather than state law or if the court has lacks jurisdiction over the type of crime alleged. For example, in some states, some courts are limited to hearing misdemeanors and so would not have jurisdiction over a felony. A court may also lack jurisdiction over an out-of-state defendant if the offense is alleged to have occurred entirely outside of the state.

Venue may be inappropriate if the defendant does not reside in the county and the crime with which the defendant is charged occurred entirely outside the county in which they are being tried. While most state statutes define venue broadly, allowing the defendant to be tried in any county in which any part of an offense (such as planning it) took place, venue may be lacking and may be the subject of a motion to dismiss.

If the trial court denies a valid motion to dismiss, a successful appeal will overturn the conviction.

2. Motion to Suppress

Evidence obtained against the defendant in violation of their constitutional rights may support a motion to dismiss, as indicated above, if the violation affects the validity of the indictment or information against the defendant. If the court declines to dismiss the action or if the unconstitutionally obtained evidence does not render the indictment or information invalid, a defense attorney may file a motion to suppress the evidence. This is a motion in which the attorney requests the court to forbid the state from using during the trial any evidence that it obtained in violation of the defendant’s rights. Although the granting of such a motion does not result in dismissal of the charge against the defendant, the exclusion of evidence may severely undermine the state’s case against them.

This is especially true of statements the state obtained in violation of the defendant’s Fifth Amendment rights. Even statements short of a confession can be damaging or potentially fatal to a defense. They may be contradictory or may implicate the defendant in the offense with which they are charged. Without admissions or implicating statements, the state will be forced to used other, less direct, and possibly less reliable or believable evidence to prove its case beyond a reasonable doubt.

The absence of incriminating evidence that the state seized in violation of the defendant’s Fourth Amendment right against unlawful searches and seizures may likewise cripple the state’s case. Without that evidence, the state must find alternative means to establish the defendant’s guilt.

The denial of a valid motion to suppress is a powerful basis on which to overturn a conviction on appeal. Particularly if the bulk of the state’s case is based on illegally obtained evidence, a motion to suppress, if it had been granted, would have substantially weakened the state’s prosecution, and will provide the prejudice necessary for an appellate to reverse a conviction.

3. Motion for Discovery — Beyond Brady

In a criminal prosecution, the state has the duty, known as the Brady duty, to provide the defense with exculpatory evidence in its possession or control. Relying on the prosecutor’s determination of what is exculpatory and what is not is risky. Filing a motion for discovery enables the defendant to seek specific physical evidence, witness statements, and records that might otherwise never be turned over. Even if the information or evidence is only tangentially related to the defense, it may provide a launching point for locating other evidence. It may uncover evidence or witnesses damaging to the prosecution’s case. As long as the motion is not a fishing expedition, a court should allow discovery of the state’s evidence and witnesses.

For instance, a defendant’s discovery motion may request the names of the police officers or investigators who gathered the evidence against the defendant. In some cases, the defendant may have the right to review the officer’s or investigator’s file (through a Pitchess Motion) to determine whether complaints were filed against him or her for Fourth Amendment violations. Such evidence may be pertinent to a motion to dismiss or motion to suppress. Similarly, the defendant may discover that persons other than witnesses have knowledge of the facts of the case. These people may provide invaluable information for the defense that the prosecution did not pursue.

If a court denies a valid motion to dismiss and evidence valuable to the defense was available in the state’s possession or control, such a denial supports overturning the conviction on appeal because the defendant was not given a fair trial — that is, not given the chance to introduce to the jury evidence that undermined the state’s case.

4. Motion in Limine

Related to a motion to suppress, a motion in limine asks the court to admit or exclude certain evidence or testimony at the trial. While a motion to suppress is generally based on constitutional violations, a motion in limine is based on prejudice to the defendant. The denial of the motions listed below may result in the reversal of a conviction on appeal. Likewise, if the court grants the motion and the state acts contrary to the decision, an appellate court may reverse the conviction.

Motion to admit or exclude prior conviction(s) for crimes of moral turpitude to impeach witness credibility. Depending on whether the witness is favorable to the state or to the defendant, this motion asks the judge to exercise thier discretion to allow the jury to hear about prior conduct that could affect the credibility of a state’s witness or to exclude such evidence against a defense witness. Whether the state’s witness is susceptible to impeachment can be determined by a motion for discovery, discussed above.

Motion to bar the prosecutor from commenting upon an accused’s invocation of Fifth Amendment rights. The defendant has a Fifth Amendment right not to make incriminating statements against themself and the right not to testify at trial. The Constitution also protects the defendant’s right to be represented by counsel. Although the Constitution bars a prosecutor from commenting directly or indirectly upon an accused’s invocation of these Constitutional rights, evidence obtained during discovery may indicate that the state could refer to the exercise of these rights during opening or closing, particularly if the state’s case is otherwise weak. A defense attorney should seek to prevent such a reference by moving the court for an order prohibiting it.

Bruton Motion to bar the prosecution in a joint trial from introducing a co-defendant’s out-of-court statement. Allowing such a statement violates the defendant’s right under the Sixth Amendment to confront the witnesses against them, and the United States Supreme Court has held that a limiting instruction to consider the statement only in determining the co-defendant’s guilt or innocence is insufficient to remedy the violation of the confrontation clause. The prosecutor’s disclosure of evidence as well as discovery may reveal the state’s intent to use an out-of-court-statement against a co-defendant. Counsel for the defendant should file a Bruton motion to prohibit such use.

Frye Motion, a special motion in limine, dealing with scientific or expert evidence. If the scientific or other technique for analyzing evidence or testimony is new, unestablished, or not generally accepted in its field, it may be unreliable and damaging to the defendant. A Frye motion asks the judge to bar the use of such evidence unless the reliability of the scientific method or the expertise of the interpreting witness are established. Pseudo-scientific evidence can influence the jury to convict a defendant when other evidence would not.

Motion to disclose identity of informant. The state does not ordinarily disclose the identity of a confidential informant. However, knowing who the informant is can provide the defendant with the opportunity to call the informant as a witness and impeach them, identify an ulterior motive for providing information to the authorities, or otherwise undermine the state’s case. Identifying the informant may be necessary to provide the defendant with a fair trial. If the information supplied is the only basis for probable cause for a search or for charging the defendant or the state’s case is based primarily on information from an informant, filing a motion to identify the informant is critical.

The denial of any of the motions in limine listed above affect the fairness of the trial and prejudice the defendant. On appeal, the appellate court’s reversal of the denial will support overturning the conviction.

5. Motion for a Change of Venue

A defendant is entitled to be judged by an impartial jury based only on the evidence presented at trial. In some cases, a crime is sensationalized by the media, statements by the police or a victim, video recordings of the events leading to a charge against a defendant, or simply the unusual, unique, or heinous nature of the crime. When that happens, the judgment of jurors in the jury pool in the vicinity of the crime may be so tainted by what they have seen or heard that they can no longer be unbiased — that is, they can no longer reasonably say that they have not formed an opinion on guilt or innocence. The defendant is therefore unable to receive a fair trial from that jury pool. For a defense attorney who believes that the passions and prejudices of potential jurors would deprive their client of a fair trial, a motion for a change of venue can be crucial.

6. Motion to Sever Trial or Cases

In most states, when the defendant is accused of committing a crime, connected crimes, or a series of crimes with another person or persons, the defendant and any others charged with the crime(s) are tried together as co-defendants. This is to preserve state resources: to keep the prosecution from having to present the same witnesses and evidence multiple times. However, in some circumstances, the risk exists that evidence against one of the co-defendants will bleed over into the evidence against the defendant, resulting in a conviction founded on insufficient evidence against the defendant.

In other cases, the interests of the co-defendant(s) are not entirely aligned with the interest of the defendant. Evidence or testimony that may be damaging to one co-defendant may be beneficial to the defendant and competing motions in limine may work to the disadvantage of the defendant. Likewise, a co-defendant might have made an incriminating statement to the authorities while the defendant did not. As stated above, a Bruton motion is supposed to limit the use of a co-defendant’s statement against a defendant, but a court may overrule such a motion, and the statement will come in, prejudicing the defendant.

In such a case, a pre-trial motion to sever the trials against the defendant and their co-defendant(s) is imperative. Whenever the evidence against one co-defendant is unfairly prejudicial to the defendant, an attorney should move to separate the trials. A defendant deserves a fair trial, which is impossible if the interests of the co-defendant(s) and the defendant are at odds.

Similarly, if a defendant has a number of unrelated cases against them that have been combined, a fair trial may not be possible. The risk exists that strong evidence in one case may cause the jury to convict the defendant in the other cases, even if conviction in those cases is not supported by the evidence. Rather than having to appeal based on sufficiency of the evidence, an attorney should file a motion to sever the cases and have each tried separately. If the motion is denied and the defendant convicted in all cases, failure to sever the cases is a strong basis for overturning the convictions on appeal.

7. Motions Particular to Individual States

Some states have pre-trial motions unique to their trial process, and counsel should investigate and take advantage of these motions. For instance, in many states, an attorney may file a motion for a bill of particulars. A bill of particulars requests the prosecutor to expand on a vague information or indictment and identify specific facts supporting the charge against the defendant, which can help a defendant prepare for trial or prepare a motion in limine to exclude certain evidence. It does not provide the prosecutor’s strategy or identify the precise evidence that the state will use to prove each element of its case, but a bill of particulars can assist the defense in limiting the evidence presented at trial and prevent surprise.

If the court denies a motion for a bill of particulars and the defendant is convicted, the denial may have deprived the defendant of a fair trial and is strong grounds for overturning the conviction on appeal.

In some states, a motion for a bill of particulars tolls the running of the speedy-trial calculation, so an attorney will need to consider whether the bill of particulars or the speedy-trial strategy is more effective.

Other pre-trial motions, if denied, can set up the grounds for a reversal of a conviction. The availability of motions such as this make it crucial for an attorney to investigate all available pre-trial motions.

Spolin Law P.C. Identifies All Possible Pre-Trial Motions

Attorney Aaron Spolin discussing with attorney of counsel Matthew Delgado | Spolin Law P.C.

The best criminal appeals lawyers will continue to fight for your rights before, during, and after trial.

Overturning a conviction on appeal is a daunting task. Generally, a defendant must show prejudice from an error in the trial to vacate the conviction, and appellate courts are reluctant to find prejudice that infected the fairness of the trial. A trial court’s denial of any of the motions listed above would provide strong support for prejudice and reversal of the conviction. They all go to whether the defendant received a fair and constitutionally sound trial, whether it is state or federal constitutional violations, the exclusion of evidence that could have been presented for the defense, or admission of unfairly prejudicial evidence or testimony. While pre-trial motions have a significant impact on how a criminal trial is conducted, they are also strategic ways to set up the success of an appeal and overturn a conviction.

When the award-winning criminal appeals lawyers at Spolin Law P.C. approach a case, we immediately review trial court transcripts to determine if the defense attorney missed any potential pre-trial motions. Additionally, we consider whether the trial court erred in denying any motions that were presented. This information will be the strong basis for our appeal or writ of habeas corpus.

To learn more about how we can help in your case, contact Spolin Law P.C. at (310) 424-5816.

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Texas’s Best: Aaron Spolin Ranked as One of Texas’s Top 10 Law Firms for Criminal Law

Published on January 16, 2022

Attorney Aaron Spolin Named One of “10 Best” Criminal Lawyers in Texas

Spolin Law P.C. is pleased to announce that lead attorney Aaron Spolin has been named one of the “10 Best” criminal law attorneys in Texas.

The impartial third-party attorney rating organization American Institute of Criminal Law Attorneys (AIOCLA) selected Mr. Spolin for its 2021 “10 Best in Criminal Law in Texas” list for exceptional and outstanding client services. However, there are several other criteria that contributed to Mr. Spolin being selected for this award.

Selection Criteria for “10 Best” Award

The American Institute of Criminal Law Attorneys has a high standard for selecting the top criminal law attorneys in each state. They select lawyers based on the following:

  • 10/10 in Client Satisfaction
  • Top Rated
  • Industry Leaders
  • No Unresolved Complaints
  • Awards
  • Associations
  • Publications
  • Speaking Engagements
  • Education and Continuing Education

The criminal defense lawyers who receive this award must be highly rated and actively engaged in the legal community in order for them to receive this award.

The AIOCLA Award Means Top Legal Assistance and Premier Customer Service

The American Institute of Criminal Law Attorneys “10 Best” Award indicates a lawyer provides top legal assistance and the best customer service. The AIOCLA is an “impartial third-party attorney rating service and invitation-only legal organization recognizing excellence in practitioners in the field.” There are six divisions in which attorneys may qualify, with Criminal Law being one of them.

This prestigious honor requires that each attorney must:

  • Be nominated by the Institute, a client, and/or a fellow attorney
  • Have attained the highest degree of professional achievement in the field of law
  • Achieve an impeccable Client Satisfaction rating

The Institute points out that “[m]any attorneys can achieve high degrees of success, but this is oftentimes at the expense or satisfaction of the most important person in the case — the client.” The AIOCLA awards attorneys that have achieved unparalleled success for the benefit of their clients. Membership in this category is an exclusive honor and is only extended to a select few who have reached the top of their professions while putting the client first.

Contact Attorney Aaron Spolin and Spolin Law P.C. for Your Criminal Case

The AIOCLA “10 Best in Criminal Law in Texas” award helps clients make educated decisions when it comes to choosing an attorney. Clients who select Spolin Law P.C. can know that they will get top criminal defense and criminal appeals legal assistance as well as premier customer service.

To speak with Texas criminal appeals attorney Aaron Spolin and the award-winning legal team at Spolin Law P.C. contact us at (310) 424-5816 or use our online contact form to schedule a consultation of your case. With offices conveniently located in Houston, Dallas, and Austin, we are accessible throughout Texas.

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