One common difficulty for defendants in criminal trials is fending off relevance objections from the government during cross-examination. If a judge is not aware of all elements of the defense strategy, the judge may erroneously sustain these objections because he or she simply doesn’t understand where the questioning is going. The point of the questions will be made clear in closing argument of course, but you have to get through the relevance objections in the meantime. You can request a sidebar with the judge, but this will interrupt the flow of your questioning and probably annoy the judge and jury.
One solution to this problem is filing a trial brief ahead of time informing the judge of your defense. The trial brief will hopefully allow the judge to make better rulings on relevance and other objections. The downside to this, however, is that you are handing the government a strategic advantage by giving away your strategy.
One way around this is to file your trial brief “ex parte” – meaning without sharing it with the government. One January 6th defendant recently attempted this in a bench trial (no jury) before Judge Boasberg.
The trial of United States v. Brian Mock starts on June 20 in the U.S. District Court for the District of Columbia. The defendant is charged with offenses relating to the events at the United States Capitol on January 6, 2021. According to case documents, Mr. Mock did not enter the capitol building but is accused of assaulting law enforcement positioned near the bike racks initially placed around the the capitol. An affidavit filed early in the case alleges that the defendant kicked a police officer, pushed another to ground, and passed police riot shields to the crowd.
Prior to trial, his defense counsel filed an Ex Parte trial brief with the judge presumably setting forth some elements of the defense strategy.
The prosecution filed a motion to strike the brief, arguing that a trial brief does not fit within any of the narrow categories of ex parte communications allowed under D.C. Circuit law. The government argued as follows:
The government recognizes that publicly filed pre-trial briefs are common and generally appropriate. The problem with the defendant’s, however, is that he filed it ex parte. If the defendant’s brief contains sensitive information that he wishes to shield from the general public, he may accomplish that goal by filing his brief under seal. But he cannot hide his attempt to influence the Court from the government and deny the United States the opportunity to know the claims of the opposing party and to meet them.
Interestingly, defense counsel (from the midwest) responded that such briefs are common where he practices:
Counsel has represented hundreds of defendants in federal criminal cases in at least four federal district courts. Counsel has tried about a dozen federal criminal cases and has participated in dozens more. Counsel has filed ex parte trial briefs as a matter of practice—primarily to provide federal district courts a summary or “roadmap” before trial but without compromising the client’s right not to disclose his or her defense until after jeopardy attaches. It’s a time-saver if the Court knows where the defense is going before the defense begins examining the trial witnesses. This is the first instance counsel has received push-back from the government on the trial brief’s filing.
Chief Judge Boasberg granted the government’s Motion to Strike.
The case is United States v. Brian Mock, 1:21-cr-444.