Motions practice

Contrary to what appears to be a common belief among attorneys in criminal cases, the court does not live in the discovery file for each case. Indeed, prior to trial, the court has little or no access to the evidence in the case apart from what the parties may present in support of or resistance to a motion to suppress or a pretrial evidentiary motion. Thus, it is critical that the parties adequately identify–and where possible provide the court with–the evidence that is at issue in a pretrial evidentiary motion. This court has, with some regularity, denied or reserved for trial ruling on pretrial evidentiary motions where the parties did not identify the evidence at issue sufficiently for the court to make a pretrial determination of admissibility. Here, the prosecution has quoted in its Response what it believes to be the pertinent part of the first letter at issue that the prosecution argues demonstrates its admissibility. The court does not, however, have any independent ability to verify the contents of the letter in full. Even if the prosecution has adequately identified the evidence at issue, for this item of challenged evidence, as well as the factual context of this evidentiary dispute for the court to determine pretrial the admissibility of this letter, the court has not necessarily been able to do so for all of the challenged evidence or to assess the admissibility of all of the evidence on all of the grounds asserted.

United States v. Schrage, No. CR 07-3033-MWB, 2008 U.S. Dist. LEXIS 106281 (DC N.D. Ill. October 2, 2008).

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