IN THE FIFTIETH JUDICIAL DISTRICT, PARISH OF PEINE DE MORT
STATE OF LOUISIANA
No. _____

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STATE OF LOUISIANA, Plaintiff
v.
JOHN CLIENT, Defendant

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MOTION TO EXCLUDE EVIDENCE OF PRIOR BAD ACTS

COMES NOW, JOHN CLIENT, by counsel, and moves this Court pursuant to the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, Article 1, Sections 2, 3, 5, 13, 14, 16 & 17 of the Louisiana Constitution, and other law set out below, to exclude evidence of his alleged prior convictions and bad acts from the trial and penalty phase of this case. In support of his motion, Mr. CLIENT states as follows:

1. Since this is to be a capital prosecution, exacting standards must be met to assure that it is fair. "The fundamental respect for humanity underlying the Eighth Amendment's prohibition against cruel and unusual punishment gives rise to a special '"need for reliability in the determination that death is the appropriate punishment"' in any capital case." Johnson v. Mississippi, 486 U.S. 578, 584, 108 S. Ct. 1981, 100 L. Ed. 2d 575 (1988) (quoting, Gardner v. Florida, 430 U.S. 349, 363-64, 97 S. Ct. 1197, 51 L. Ed. 2d 393 (1977) (quoting, Woodson v. North Carolina, 428 U.S. 280, 305, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976) (White, J., concurring))).
2. The rule against injecting extraneous crimes into the trial has a profound role in American jurisprudence:
The rule is designed to avoid "a danger that the jury will punish the defendant for offenses other than those charged, or at least that it will convict when unsure of guilt, because it is convinced that the defendant is a bad man deserving of punishment."

United States v. Brown, 880 F.2d 1012, 1014 (9th Cir. 1989) (quoting 2 Weinstein & Berger, Weinstein's Evidence, ¶ 404, at 404-29 (1988)); see also Hill v. State, 538 So. 2d 436, 437 (Ala. Crim. App. 1988); Collins v. State, 513 So. 2d 877, 878-79 (Miss. 1987) (evidence of pornographic magazines in sexual battery case); Dudley v. Duckworth, 854 F.2d 967, 972 (7th Cir. 1988) (habeas corpus granted on due process grounds based on admission of other-crimes evidence). Likewise, at the penalty phase the Supreme Court is leery at the admission of bad act evidence. As the Supreme Court has held, evidence of any "conviction, no matter how minor the crime, may tend to inject an arbitrary factor into the hearing, [so that] some limitations are necessary." State v. Jackson, 608 So. 2d 949, 954 (La. 1992).
3. The Supreme Court has recently reviewed the admissibility of prior bad acts in the penalty phase of a capital trial. See State v. Jackson, 608 So. 2d 949 (La. 1992). It is not clear what the precise limits of Jackson may be, but subsequent to that case the Supreme Court has rigidly adhered to the rules set out. State v. Bourque, 622 So. 2d 198 (La. 1993) (post-Jackson reversal of capital case for going too far in mini-trial at the penalty phase on a prior murder); State v. Durham, 634 So. 2d 848 (La. 1994) (writ granted post-Jackson prohibiting evidence of the original charge where the accused had been allowed to plead guilty to a lesser offense); State v. Langley, 639 So. 2d 211 (La. 1994) (barring evidence of actual molestation on prior conviction where plea was to attempt).
4. This Court must carefully regulate what evidence may be admitted in support of the prosecution's notice. It has long been the law that "[m]inor details of far ranging and irrelevant matters such as conditions of probation, alleged but uncharged offenses and charges dropped in response to a guilty plea may not be used. . . ." State v. Tassin, 536 So. 2d 402, 408 (La. 1988). Recently, the Court "limit[ed] the convictions on which the prosecutor may introduce evidence during the case-in-chief to crimes classified as felonies. * * * Further, we limit the evidence supporting the conviction to the document certifying the fact of conviction and to the testimony of the victim or of any eyewitness to the crime, and we specifically prohibit evidence of the original charge when the conviction is for a lesser offense." State v. Jackson, 608 So. 2d 966, 954 (La. 1992). This has subsequently been clarified to make it absolutely clear that no evidence of a greater charge may be admitted. For example, in State v. Durham, 634 So. 2d 848 (La. 1994), the defendant had been charged with actually blowing up a witness with a bomb, but had entered a plea to possession of a pipe bomb. The court prohibited evidence showing that someone had actually been injured by the bomb. Accord State v. Langley, 639 So. 2d 211 (La. 1994) (barring evidence of actual molestation where plea was to attempt). With respect to the 1980 conviction, since Mr. CLIENT entered a plea to attempted armed robbery, no evidence may be introduced as to the fact that an armed robbery actually occurred.
5. The prosecution has given a Jackson notice of various prior unadjudicated crimes it seeks to use at the penalty phase. To begin with, the allegation made that Mr. CLIENT previously * * * is not specific as to time. It is wholly too vague to allow Mr. CLIENT to prepare to meet it, and should be stricken without more ado.
6. With respect to unadjudicated crimes in general, the Supreme Court "limit[ed] the criminal conduct on which the prosecutor may introduce evidence in the case-in-chief in the capital sentencing hearing to that which involves violence against the person of the victim. * * * [W]e further limit the criminal conduct which the prosecutor may introduce to that conduct for which the period of limitation for instituting prosecution had not run at the time of the indictment of the accused for the first degree murder for which he is being tried." State v. Jackson, 608 So. 2d 966, 955 (La. 1992). Under this standard, none of the crimes alleged in the notice may be used against Mr. CLIENT.
7. There are two juvenile convictions alleged against Mr. CLIENT. Juvenile convictions are not to be treated in the same manner as other crimes, since the accused does not receive the same protections. See, e.g., K.M.S. v. State, 129 Ga.App. 683, 684, 200 S.E.2d 916, 918 (1973) ("[t]he juvenile court is a civil court, not a criminal court, and an adjudication of delinquency is not a conviction of a crime. * * * The juvenile court cannot find anyone guilty of a crime"). With respect to such convictions, then, the Supreme Court has laid down the following rule: "the admissibility of such adjudications is limited to adjudications based on an offense that would be a felony if committed by an adult." State v. Jackson, 608 So. 2d 966, 956 (La. 1992). For unadjudicated juvenile convictions, not only must the statute of limitations not have run at the time of indictment for the capital offense, but it must be one of those "crimes enumerated in La. Cr. Code arts. 305 and 857." State v. Jackson, 608 So. 2d 966, 956 (La. 1992). Again, none of the crimes alleged against Mr. CLIENT fits these criteria.
8. Mr. CLIENT is emphatic that the prosecution may not do covertly what is impermissible overtly, and may not lay these prior bad acts before the jury by merely asking questions of witnesses. Prior to using evidence of prior criminal history, the trial judge must determine "outside the jury's presence that the state ha[s] credible grounds for its cross-examination." State v. Ford, 489 So. 2d 1250, 1263 (La. 1986). For a showing of "good faith," the prosecutor should be able to show that his questions are backed "certified copies of records or with witnesses to testify concerning these acts." Clark v. State, 186 Ga. App. 106, 110, 366 S.E.2d 361, aff'd., 258 Ga. 464, 369 S.E.2d 900 (1988). If no witnesses would be allowed to testify about these acts (as discussed above) then there is no good faith basis for asking the questions.
WHEREFORE Mr. CLIENT moves that this Court set his motion down for an evidentiary hearing, and exclude the allegations of bad acts discussed above.
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