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Why Stip Facts Trials are the Death of Hope

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Okay, a bit of a melodramatic title, I admit. But today’s opinion in St v. Ofenham is a reminder why “stipulated facts” trials are a bad, bad idea, unless you know exactly what you’re doing.

This post will briefly talk about preserving pre-trial issues for appeal. But this isn’t an exhaustive discussion, and you should keep in mind that there is no “one way” to do it that would apply in every case. As a defense attorney, you need to be flexible and think about what you’re willing to agree to and what impact it would have on any appeal.

My general rule is that if you aren’t sure you know how to do it correctly, just have a bench trial with live testimony. Yes, there will be pressure on you to “save time,” but if your primary goal is to preserve the issues for appeal, then you must make that your highest priority, even if it takes a little more time. There are worse reputations than being known for being extra-cautious.

Also, don’t think of it as a “stipulated facts” trial. Think of it as a “stipulated evidence” trial. What’s the difference? If you stipulate to the fact that your client possessed cocaine, that’s a guilty plea in all but name. If you stipulate that the officer would testify that he found cocaine in your client’s pocket, that’s a stipulation to evidence.

The difference between the two is significant in outcome. If you stipulate that your client possessed cocaine, it is irrelevant whether the search of your client was illegal and you should have prevailed on the on the motion to suppress. Thus, the issue you sought to preserve is moot. On the other hand, if you stipulate to the evidence the state plans to offer, then reversing the trial judge on the motion to suppress means the state loses the evidence that would have been offered.

So let’s assume you had a motion to suppress and you lost. You have no issues for trial, and the judge is irritated and baffled by your plan to do a bench trial, so you decide that it’s in your client’s best interested to do a stipulated evidence trial. (Technically speaking, a stipulated evidence trial is still a bench trial; it’s just one without live witnesses.) In general, if you want to preserve the issues in a motion to suppress for appeal, it is usually sufficient to stipulate that “if called to testify at the trial, Officer McSearch would testify consistently with how he testified in the motion to suppress.”

I’ve done it that way for years, on those very rare occasions where I’ve lost a motion to suppress and didn’t have an issue for trial, and no appellate attorney has complained yet.

Now, sometimes, the above stipulation would be insufficient by itself, because certain facts that might be necessary to prove guilt (such as the crime lab report) may not have come in during the motion hearing. But in that situation, simply don’t object to the prosecutor offering the crime lab report, supplementing your stipulation.

Again, there is no “one size fits all approach.” A failed Miranda motion may require more care to preserve the issue than other types of motions. The important thing is that you don’t just go through the motions. Think about what you’re doing, and if you aren’t 100% confident that you’re doing it right, just have a trial with live testimony.

Ryan Scott is a 2011 Superlawyer. His website is here.