Fill and Sign the Motion Bar 497329085 Form

IN THE CIRCUIT COURT OF ________ COUNTY, __________ NAME OF PLAINTIFF )       ) ) V. ) ) NO. ) ) NAME OF DEFENDANT )       ) ) MOTION TO BAR ADMISSION OF INFLAMMATORY AND PREJUDICIAL MATTERS CONCERNING THE VICTIM COMES NOW, ______________, by counsel, and moves this Court pursu ant to the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and Article _____, Sections ________ of the __________ Constitution to bar admission of inflam matory and prejudicial matters concerning the victim in this case. In support of his motion _________________ states as follows: 1. Inflammatory references to the victim and their fami lies are inadmissible as a matter of state law these are not permissi ble. Victim impact evidence is simply not relevant to the issues before the jury at the penalty phase. These are defined by the aggravating circumstances listed by the statute. See Miss. Code Ann.  99-19-101(5) . The legislature has said nothing to make the impact on the victim a relevant aggravating circumstance, so the evidence is therefore inadmissible. See Miss. R. Evid.  401, 403 . Indeed, the __________ Supreme Court has previously stated that: a jury's verdict must be based upon the evi dence and not affected by extraneous influ ences. [This Court has] also repeat edly rec ognized the gravity and immeasurable solemnity of a jury's deliber ations during the sentenc ing phase of a capital murder trial. The importance of this deliberation may at times cause inconvenience and hardship; however, to allow distractions and outside influences to infect the jury's thoughts at this criti cal juncture of the proceedings is to devalue human life. Fuselier v. State , 468 So.2d 45, 57 (Miss. 1985) (citations omitted). In Fuselier , the victim's daughter had been permitted to sit in the courtroom in such a manner that the prosecution seemed to be proceeding for her benefit. To the contrary, any capital case must take place in an atmosphere of calm and ratio nale deliberation. Indeed, such evidence is simply not relevant in a capital trial. In Wiley v. State , 484 So.2d 339 (Miss. 1986), the __________ Supreme Court stated: "Ordinarily the character or reputation of the deceased person is not involved as part of the issue in a murder case and proof relative thereto is generally inadmissible." Shinall v. State , 199 So.2d 251, 257 (Miss. 1967); see also , Hubbard v. State , 288 So.2d 716 (Miss. 1974). It is generally agreed that the prose cution cannot enter proof of the good charac ter of the decedent as part of its main case. McCormick, McCormick on Evidence , Section 193 (2nd Ed. 1972); see also , 40 Am.Jur.2d Homi cide Section 308 (1968) (before the character of the deceased has been attacked by the de fendant, the prosecutor may not introduce evidence of the reputation of the deceased for peaceful ness). Id. at 349. 2. The same conclusion must be reached under the United States Constitution. This Court should agree with the Fifth Circuit that "the admis sion of emotionally charged, live testimony regarding the vic tim's character, demeanor and reputation in the community were altogether irrelevant to the question of whether [the defendant] should be put to death." Rushing v. Butler , 868 F.2d 800, 804 (5th Cir. 1989), (cited with approval in Payne v. Tennessee , 501 U.S. ___, 111 S. Ct. ___, 115 L. Ed. 2d 720, 743 (1991) (Souter & Kennedy, JJ., concur ring)); see also McGahee v. State , 554 So.2d 454, 469-70 (Ala. Crim. App. 1989); People v. Simms , 121 Ill. 2d. 259, 117 Ill. Dec. 147, 520 N.E.2d 308, 313-15 (1988); People v. Washington , 54 Ill. App. 2d 467, 204 N.E. 2d 25 (1965). 3. This evidence should not be admitted. However, to the extent that the prosecutor believes that the evidence should be admitted, __________________ specifically requests discovery concerning evidence, which might refute or rebut any evidence, which might be offered by the State in aggravation. ______________ emphatically reiterates that, in his opinion, it is offensive to value one life more than another because the victim is white rather than black, rich rather than poor, young rather than old, from a happy family rather than a difficult one, etc.; however, regret fully, should the prosecu tion seek to make this discrimination relevant to the penalty phase, ___________________ be prepared to deal with the prosecut ion's ill-advised decision. WHEREFORE, for these and such other reasons as may appear at an evidentiary hearing on this matter, _____________ respectful ly moves that this Court enter an order in limine barring this kind of inflammatory tactic, and/or an order requiring that the State produce exculpatory evidence on this subject. Respectfully submitted, _____________________________ _____________________________ By:___________________________ HIS ATTORNEY __________ CERTIFICATE OF SERVICE I certify that I have this date delivered, by hand, a true and correct copy of the above and foregoing Motion to This the ____ day of __________ _____. Respectfully submitted, ___________________________________