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Tuesday, November 1, 2011

Teaching Pretrial Motions in Advocacy Courses

One of the most difficult advocacy skills to effectively teach is motions practice.  I've tried several different ways to deal with this over the years, each with varying levels of success.  It has been difficult to find a structure that allows for the proper development of pretrial motion argument skills without becoming consumed by the types of evidentiary issues that often overshadow the actual presentation performance.

I wanted to share with you today the results of a particular tactic that had some success.

I asked two members of the Stetson Trial Team, Kristin Johnson and Jessie Weissman, to take a fact pattern  in a date rape case and address the admissibility of potential character evidence(I'll put that information that I gave them at the end of this post).  I gave them the facts, told them to pick the evidentiary issue they needed to address, file a motion with the court (me) and then we would set a time to argue it.  This is the result:

video

The students were concerned because they felt that they did not perform perfectly, that they were not completely sure how to respond to the court, and how to structure the argument.  Now these two young ladies are excellent advocates and some of the best that Stetson has to offer and I found their work in this exercise to be fine from an advocacy perspective - but that wasn't really what I needed to teach.  I needed to help them connect the skills they were using to the big picture, I just didn't know that when we started the process.

After the exercise we discussed the law and the relevant advocacy skills, but the real teaching moment became a mentoring process of how to deal with the uncertainty of motions practice.  Structuring the argument, reading the judge, knowing when to hold them and when to fold them in light of your overall case theory and analysis were all part of the discussion.  It allowed for a teaching experience that holistically addressed all of the various pieces of the process, teaching them in connection to one another and to the law.  I don't know about you, but those are the teaching moments that I look forward to.  I would love to hear how others have approached teaching motions practice.

Till next time,

Charlie

P.S. HERE ARE THE MATERIALS I GAVE THEM(it comes from an appendix in the teacher's manual to my trial ad book and is based on a problem we used to use at TJAGSA).


 SPECIAL AGENT BILLIE STEVENS DEPOSITION TESTIMONY:

            My name is detective Billie Stevens.  I am attached to the State U Police department. I have been a detective for the past seven years, having cross­-trained from the fireman career field.  For the past three years, I have primarily been assigned to investigate what is commonly referred to as "crimes of passion".  During this period, I have personally investigated ten cases involving allegations of rape, and approximately a half-dozen cases involving allegations of aberrant sexual misconduct.  I have attended various educational courses and seminars involving the subject matter of rape and aberrant sexual misconduct and, on occasion, have served as a guest lecturer on both topics.

            I was the case agent.  I was first contacted on Tuesday, 11 Jul 200X-1, regarding this matter when the clinic notified us me about a rape complaint by Beth Tucker allegedly committed by David Lewis.  Both persons are currently students at State U.

            Late that evening, I managed to contact the accused's residence advisor and requested he locate Lewis and escort him to the police station.  The RA told me Lewis had been up for almost 48 hours working on a term paper that was due that day.  He wanted to know if it would be possible to allow Lewis to get some much needed sleep; I advised the RA that it was absolutely imperative that I see Lewis immediately.  Approximately one hour later, at 1:10 AM, the RA escorted Lewis to my office. Lewis maintained that he had no idea why I wanted to see him, and why it couldn't wait until morning; he complained that he was very tired and not feeling well.  I told Lewis that I understood that he was tired but that I had some questions that had to be asked immediately, and that he would have to gut it out.  In my opinion, Lewis did not appear to be particularly tired or otherwise psychologically stressed in any way.

            I asked the RA to have a seat outside my office, Lewis agreed to allow me to interview him.  I further advised Lewis that Tucker had accused him of having raped her approximately one week ago, and that at this point he was, indeed, a suspect.  The first thing that Lewis said was "Oh, man, I knew that girl was going to be trouble.”  I asked him what he meant by that statement, and he replied "Nothing…just forget it.”

            Lewis proceeded to advise me that prior to the evening in question, he really didn't know the victim very well.  He indicated that he had seen her several times at various social events, but that he had never really been close to her, had never dated her, and did not so much as even consider her a friend. Lewis did indicate that he knew of the victim; that is, he was of the opinion based upon what other persons had suggested, that the victim had a reputation for being a sexually promiscuous person.  When I asked Lewis who, specifically he had heard this from, he just shrugged and said it was pretty much common knowledge.  He did not specifically attribute his knowledge of the victim's alleged questionable reputation to any particular person.

            Lewis maintains that he attended a party on the evening of the fourth of July; the party was held in the dorm room of Michael King.  According to Lewis, there were approximately 15 people at the party, when he arrived at approximately 10 PM.  According to the accused, Tucker arrived shortly thereafter. Lewis maintains that he engaged the victim in small talk during the course of the evening.  Later in the evening, Lewis maintained that the victim approached him, and began complaining about some problems she was having with her boyfriend who was back home earning money for school.

Lewis claimed that he tried to dispel the victim's obvious concern over her problems with her boyfriend.  According to Lewis, Tucker was not in the mood to listen to reason.  Rather, according to the accused, Tucker solicited him to join her after the party "for a private party" of their own.  According to Lewis, he took this clearly to mean that Tucker was interested in engaging him in sexual relations.

According to Lewis, he and Tucker agreed to meet in her room approximately 30 minutes after she had left the party. Lewis claims that she was "concerned for her reputation" and didn't want people to see them leaving together.  In fact, Lewis told me that he and Tucker agreed that they would engage in a charade for "appearance" purposes, in that Lewis would specifically ask her in the presence of others whether she wanted to get together later that evening, and that she would politely decline, stating she was too tired.  According to Lewis, he waited approximately 30 minutes and then proceeded to Tucker's room, which was located downstairs in the same building as the party.  Lewis claimed that he knocked softly on her door, and that she directed him to enter the room.  According to Lewis, she was lying on her bed, in provocative repose, wearing only a very short nightshirt.  Lewis claims that the room was dimly lit by a single lamp on the side of the bed, and he went over to the bed and sat down.  According to Lewis, at this time Tucker pulled up her nightshirt, exposed ha bare breasts, and Lewis began to fondle her.  According to Lewis one thing led to another and, in a very short time, they were involved in the act of intercourse. Lewis claims that Tucker took the initiative throughout the sexual encounter, and that she insisted on "being rough" according to Lewis.  According to Lewis, they spent approximately 20 to 30 minutes in bed together, Lewis admitted to me that he ejaculated, although he claims to have withdrawn his penis from her vagina just prior to climaxing. Lewis maintains that before he left the room, Tucker told him that she did not intend to continue this relationship, and that this had to be their own little secret.

The accused was reluctant to share these details with me and it took me a fairly long period of time to draw them out.  Lewis claimed that he was basically a quiet, reserved person, and that he was embarrassed to discuss these intimate details with anyone.  He also indicated that he was extremely tired, and that he would like to get some sleep.  I told Lewis that I understood how this might be a little embarrassing for him, but that it was extremely important for him to tell the truth.  I told him that although I could not make him any promises regarding the disposition of this matter, that it was my definite experience that it was always better to tell the truth, and that those persons who told the truth usually received more favorable treatment by the system.  I told him that if he wanted to discontinue the interview, we could, however, I thought we only needed a few more minutes to wrap it up.  He agreed that, even though he was very tired, he would rather just get it out of the way at that time.  As I recall, this occurred at approximately 0300 on Wednesday morning, 12 July 200X-1.

I then prepared a written statement for Lewis' signature based upon all the information he had provided me.  I asked him to review the information contained in the statement and that, if it was true and correct, he should sign it under oath.  After reviewing the information, at approximately 5 AM, he indicated that it was accurate, and he swore to the truthfulness of the statement just prior to signing his name.  As is my custom and routine, before I dismissed Lewis, I asked him whether there was anything that he wished to share with me before he left.  Lewis seemed a little hesitant and undecided.  I again encouraged him that it would be in his best interests to be totally truthful; however, I did not promise him any deal or preferential treatment.  It was at this time that Lewis stated to me that "...I didn't rape her, she was the one that wanted it.  You gotta believe me.  We may have had some rough sex, but she was the one who put the whole thing together."  At this point, I asked Lewis if he would be willing to amend his earlier written statement to include what he had just told me; he thought for a moment and said, “Well, I'm really not all that sure about it, and besides, I think I better talk to a lawyer.”   I then immediately terminated the interrogation.



INTERVIEW OF DAVID LEWIS BY POLICE:

My name is David Lewis.  I am student at State U.  I have been here for approximately two years.

            I have known Beth Tucker for approximately 18 months; although we were never what you would call good friends, I've seen her off and on around campus and at one or two intramural softball games.  I think we may have both been at a couple of parties, also.

            Before the fourth of July, I had never been on a date with Beth Tucker, or ever really been together with her one-on-one socially.  We have some common acquaintances, but, again, we were never what you'd call close friends.

            Over the past year or so, I've heard some of the guys talking about Beth Tucker.  The scuttlebutt and rumors pretty much has it that she's pretty loose and likes to party.  What I mean is that she has a reputation for being sexually promiscuous.  In the past, I've even heard that she really enjoys rough sex.  However, before the last fourth of July, I never knew this for sure, and quite frankly, never really paid that much attention to any of it.

            I live in the dorms directly across the parking lot from Beth Tucker’s dorms.  Since Tuesday, the fourth of July was a holiday, a bunch of us were just hanging out during the day; someone mentioned that King was going to have a party that night, and that several of the women who lived in the dorms would probably be there.  One of my friends, Todd Stewart, mentioned that he was going to the party, and suggested I join him. King lives in the same dorm as Beth Tucker.

            Around 10:00 that evening, I decided to go across the parking lot and see what was going on at the party.  I walked up to the second floor, and when I got to King's room, I noticed there were about 15 people there.  I either knew or recognized almost everyone at the party.  When I got there, I noticed that Stewart was already there, and we sat down together and had a couple of beers.  About this time, Beth Tucker came in.  She was wearing a pair of satin shorts and a loose-fitting T-shirt.  I noticed that she was real friendly with several of the guys at the party; I saw her greet some of the guys with a hug and a kiss.

            It was just about this time that Stewart mentioned to me that Beth Tucker had quite a reputation for being a loose woman.  Stewart told me that rumor had it that she liked rough sex.

            A little while later, Beth Tucker came over and said hello to both Stewart and me.  At this time, Stewart excused himself and Beth Tucker and I had a casual conversation.  She mentioned that she remembered meeting me at a softball game and at a party at the lake.  While we were talking, she was drinking what I think was a rum and coke.  She did not appear to be intoxicated; however, it did seem that she was having a good time.

            After my conversation with Beth Tucker, I noticed that she went over and was talking to Paul Frye.  At the time, I had no idea what they were talking about, although it appeared to me that whatever Frye told Tucker had gotten Tucker really excited.  I couldn't make out the words, but Tucker was obviously pleased.  After her brief conversation with Frye, Tucker immediately left the party.
           
            I pretty much just continued to mingle with the guests, and knock off a couple of more beers.  The party got a little slow, and I walked out in the hall and headed to the day room.  The TV was already on, and I just sat down and watched MTV.  After 10 or 15 minutes, I decided I'd head back down to the party.  As I walked out of the common room, Tucker was walking down the hall.  I asked her if she was going back to the party.  Tucker said something like, "Yeah, take me back down there and I'll show you how to party."

            When we got back to the party we each went our own way.  I noticed that Tucker was talking to a couple of her friends, and that she knocked off at least two rum and cokes in a hurry.  I didn't know exactly what her problem was, but for the next 15 or 20 minutes she kept looking over at me with a very sexy smile.  I'm not making this up; you can ask Stewart.

            Tucker waved at me to come over to her and I did.  We talked a while and she told me she was upset with her boyfriend because he found time to call his roommate and coworkers more than he did her.  I suggested that we dance, that it would help take her mind off her problems.  We danced a couple of fast songs; although the music was fairly loud, we carried on a little conversation during our dances.  She was still obviously upset with her boyfriend.  At this point, a slow song came on, and she threw her arms around me and brought her body very close to mine.  She told me that she thought she'd made a big mistake being totally faithful to her boyfriend...something about him not knowing what a good thing he had.  She then told me, "I'm not going to let that bastard take advantage of me."  As she rubbed my shoulders, she whispered in my ear, "How about we go to my room and have our own private party?"  I could hardly believe my ears; I told her, "That works for me."  The song ended and she said, "give me 30 minutes, then meet me in my room downstairs, number 134...I'll leave the door unlocked."  She went around the party saying goodbye to friends.  At this time, I asked Tucker, in the presence of her friends, as we had agreed, whether she wanted to spend some time with me after the party...she said, "No, I'm tired."  She left the room and went down the hall, towards the end of the building.  I walked away from the door and Stewart came up to me and said something like, "Good try--maybe next time."  I told Stewart exactly what had happened, and what the arrangement really was, at which time he told me, "I told you so."

After talking to Stewart I left the party and went down the center stairs by King's room.  When I reached the bottom of the stairs, I glanced down the hall and saw Tucker at the other end of the hallway.  Before she reached her room I continued around the stairwell and headed for the day room.  I passed one guy coming from the other wing; we said hi.  When I got to the day room, there was another guy there watching TV; I just sat down to kill some time.  I waited about 30 minutes, then went down the hall to Tucker's room.  There was no one else in the hall at the time.  I knocked real soft and said, "Hey, it's me."  I tried the door and it was unlocked.  I opened the door and peeked in; she was lying on the bed.  She said to come on in.  I locked the door when I went in.  There was a lamp on, but it was very low.  I went over to the bed and sat down.  She pulled up her gown, and I began kissing her and touching her breasts.  After a few minutes, I took off my shorts and underwear and got on top of her.  She began to moan loudly, and I put my hand over her mouth so no one would hear her.  She seemed to get even more excited, and was moving around even harder, hitting at me, she even hit me in the face a couple of times.  I was really worried that someone was going to hear us.  We had sex for a few more minutes.  Just at the point that I was about to climax, I withdrew my penis from her vagina and ejaculated all over her bed sheet and her nightgown, which was lying on top of the bed.  She was upset with me for messing up her bedding.  Afterward, we just laid there together for a couple of minutes, catching our breath.  I told her it was very good, but I hoped that no one heard us. Tucker appeared to be very concerned; for the first time, she told me that she wasn't exactly sure where her relationship with her boyfriend was going, and told me this was a one-time deal, and that I was not to "tell a soul".  I got dressed and I left.  I don't remember if the light was on or off when I left.

When I left Tucker's room, I ran in to Stewart.  As we were walking together across the parking lot to our dorm, Stewart asked how it was, and I said, "It was good," and he said something like "They all say that."


POLICE INTERVIEW – BETH TUCKER:

Last Tuesday, 4 Jul 200X-1, I went downtown to watch the fireworks with some of my friends.  We got back to the dorm around 10 PM. Michael King was having a party in his room, so I went up to see who was there.  People were drinking and dancing.  I had some drinks, my usual amount, 3 rum and cokes.  I saw Paul Frye and he said he had talked with my boyfriend, John Douglas.  He told me John would call me on the weekend.  Paul and John are roommates.  I also saw my best friend, Tracy Smith.  I went to her room to see her.  When I was walking back to the party I saw David Lewis.  He asked me if I was going back to the party and I said yes.  He put his arm around me, but I told him my boyfriend wouldn't like that.
           
            Lewis came up to me again at the party, and put his arm around me and asked me to dance.  I didn’t want to, and I looked over at Tracy, but she told me to go ahead and have a good time, it was just a dance.  We danced to a couple of songs, then a slow dance.  After that I talked with King, and Lewis wouldn't take his arm from around my shoulders.  I had to work the next day, so I left the party around 0100 and went to my room. On the way Lewis asked me if I wanted to party in his room, and I told him no, I was tired.  I didn't see anyone in the hallway when I got to my room.            ­
           
I was asleep when Lewis came into my room.  I asked him what was he doing there, but he didn't say anything.  He got on the bed with me, and said "Let's party now.  I know you like it."  I told him no, but he got angry and said "Now!" he put his hand on my mouth and got on top of me, and he was touching me.  I tried to get away, and I think I kicked him, but he was choking me with his hand on my mouth.  He pulled his gym shorts down and used his knee to get between my legs.  He stayed on top of me, and he was holding my right arm and hand down.  I hit him with my left hand and tried to push him off, but he was too big.  I hit him in the face.  When he was done he said "that was so good baby" in a sarcastic kind of voice.  Then he told me I'd better not tell anyone.  After he was gone I was crying and I didn't know what to do.  I stayed in my room, took a shower and got dressed.  Then took my bed sheets and nightshirt and put them in the washer in the laundry room.  I went to Tracy's room and told her what happened.  She wanted me to call the cops but I didn't want John to find out.
           
When John called me that weekend I tried to act normal, but he could tell something was wrong, so I told him what had happened.  He was real angry, just like I knew he would be, but then he calmed down and asked me if I was OK, and if I had reported it to the cops.  I told him I was afraid and he said he'd call the cops if I didn't.
           
Today I was at work, but I wasn't feeling well, so I went to see a friend at the hospital.  I told Lesley Hill what had happened, and then I went to the OB/GYN clinic and Hill told a tech there what happened.



POLICE INTERVIEW – TODD STEWART:

My name is Todd Stewart.  I attend State U.  I have been here for approximately 14 months.  

            I have known David Lewis since first getting to State U.  He and I live in the same dorm.  I don't know Beth Tucker personally, but I know who she is; I see her around and at some of the parties.  I have never dated Tucker.  I have heard some rumors about her sexual activities.
           
            On the fourth of July, which was a holiday, I was just hanging out with friends.  Sometime during the day, I heard that there would be a party in the dorm across the parking lot from us in King's room.  That is the dorm where Tucker lives.  I mentioned this to Lewis, and told him we should check it out because some of the women who lived in that dorm would probably be there.

            I went over to King's dorm around 9:30 that night to check out the party.  Lewis came in a while later.  He sat down with me and we were drinking beer and talking.  Some time after that, Tucker came in, wearing shorts and a T-shirt.  While Lewis and I were talking, I mentioned to him some of the rumors I had heard about Tucker -- that she was usually available for sex, and she liked it kind of rough, and I laughed and said I heard she was a screamer.  Lewis showed some interest, and asked me if Tucker had a boyfriend.  I told him her boyfriend had been back home since about last May, but I didn't think that should make any difference; rumors said she was available with or without a boyfriend.  While Lewis and I were talking about her, I saw Tucker going around the room saying hi to her friends, and exchanging friendly hugs and kisses with some of the guys.  After a while, Tucker came over and said hello to me and Lewis.  I left to get a beer.  She had a drink in her hand at the time, but I don't know what it was.  She didn't seem to be drunk just laughing and having fun with her friends.  Some time after that I noticed that she wasn't at the party any more.  I was still just drinking beer and hanging out.

            Some time passed, 20 to 30 minutes maybe, and I saw Tucker with some of her friends, talking.  By this time, I was sitting with Lewis again, talking.  For quite some time, 20 minutes or so, while Tucker was with her friends, she kept looking at Lewis and smiling.  I asked him what was up, it looked like she had the hots for him or something.  He didn't say anything. I left again, roaming around the party and talking.
           
            Later, I saw Tucker and Lewis talking together.  When she walked off, I went over to Lewis to see what was up.  He told me Tucker was really upset with her boyfriend because he couldn't seem to find time to call her, but he could find the time to call his roommate and all his male friends.  Lewis told me he had tried to tell her it was like that how he worked long hours and didn't have time, stuff like that.  I told Lewis I thought Tucker was sending out some good signals, what was he going to do about it?  He told me he wasn't sure he should do any thing, he might look like a fool later.  Some time after that, I saw Lewis and Tucker dancing together.  They danced two or three fast cuts, then a slow song.  They looked very comfortable during the slow song, talking with their heads close together.  A short time after that, I saw Tucker and Lewis at the door of King's room.  I'm not exactly sure what Lewis said, but I heard Tucker tell him she was tired.  After she walked off, I went over to Lewis and told him something like "better luck next time".  He grinned, and told me he and Tucker had a date to meet in her room later; they were just being cool for her friends.  I said "I told you so".  Then Lewis headed down the stairs.

            It was about 45 minutes to an hour later when I was going down the stairs to leave the dorm that I saw Lewis coming out of Tucker's room, towards the end of the hall.  I walked towards him and he walked towards me.  It was 1:30.  I said something like, “imagine running into you down here.”  He told me to be quiet.  We were talking while we walked across the parking lot to our dorm; and he said it was good, or something like that, and I told him that I'd heard that before.  I assumed Lewis was referring to having sex with Tucker.

            Lewis isn't a real talkative guy; even though I tried to pump him for more details about his night with Tucker, he's just not the type of guy who's going to talk about things that personal. 


POLICE INTERVIEW – DOUGLAS:

     The Saturday after the 4th of July I was talking to my girlfriend, Beth Tucker.  She is at State U.  I could tell something was wrong from the tone of her voice, and I asked her a couple of times what was bothering her.  At first she didn’t say anything, but then she started crying and told me she had been raped by David Lewis.

     At first I was real angry and yelled at her, and I asked her how could she let something like that happen.  Or was she drunk or something.  She said that he came into her room and held his hand over her mouth while he raped her.  She said she couldn’t get him off her, that she kicked him and even scratched him in the face.  She was crying really hard and kept repeating she didn’t know how it could have happened.

     After a while I calmed down and asked her if she was all right, but she didn’t say anything.  Then I asked her if she had reported it to the cops and she said, “No, I’m afraid.”  That didn’t make any sense to me so I told her to take Tracy Smith with her to the cops.  I told her if she didn’t call them, I would call from here.  I tried to tell her every thing would be all right between us, and that she really needed to go to the cops.  I had to go to work then so we said goodbye to each other.  I haven’t talked to her since then but I plan to call her this weekend.      


TRACY L. SMITH DEPOSITION TESTIMONY

            I am Tracy L. Smith.  I attend State U. have known Beth Tucker since freshman rush.  I would say she is my best friend and I am her best friend.  I know the accused, David Lewis, but not very well.  I've seen him at some parties on campus.

            On Tuesday, 4 July, I went to the fireworks show with Tucker and some other friends.  We got back around 10 p.m.  I was in my room reading when Tucker came to my room.  It was about 10:30 p.m.  She was pretty excited because she said Paul Frye told her that her boyfriend would be calling on the weekend.  Her boyfriend is John Douglas, and he was back home.  She wanted me to join her at this party down the hall, so I told her maybe I would go after a while.

            I did go on to the party.  It was in Mike King's room.  There probably were 15 or 20 people there.  I saw David Lewis there.  He seemed to be drinking a lot.  I know I saw him take a shot of tequila, but he was mainly drinking beer.

            I saw Lewis ask Tucker to dance, and she didn't want to.  She looked over at me with this look on her face, like "What should I do?"  So I told her to just go on and dance and have a good time.  I also thought that if she danced once with Lewis maybe he would find someone else to dance with after that. Tucker danced with Lewis for several songs, and the last one was a slow dance, so I saw him pull her real close.  Afterward he had his arm around her when they were talking with Mike King.  I could not hear that conversation.

            I left the party about midnight.  I saw Beth the next morning in the dining hall.  I got there about 0615.  I saw Beth sitting by herself at a table drinking coffee.  I thought that was odd because I have never seen her drink coffee before.  She looked tired.  I figured she'd talked to her boyfriend on the phone and they'd had a fight or something and broke up.  Her boyfriend is John Douglas and he's back home.  I sat down at the table across from her.  She was calm; she was just staring off into space.  I asked her what was wrong.  She said "nothing" but I knew something was wrong.  I asked her several times and finally she said she didn't want to talk about it.  She wasn't crying, but you could tell she was upset.  Her voice quaked when she answered my questions.  I knew something was terribly wrong.  I told her I wasn't leaving until she told me what was bothering her.   Finally, she told me that David Lewis had raped her.  I couldn't believe it.  I kept asking her what she was talking about, what had happened, and finally she tells me that David Lewis had raped her.  I think her exact words were, "David just raped me."

            I was really shocked.  But then I told her she had to call the cops, that she had to be examined at the hospital.  I tried for 20-30 minutes to get her to go to the hospital, but she wouldn't go.  She said, "I don't want anyone to know.  They'll think I was fooling around on John."  She made me promise not to tell anyone, and I didn't until the detectives called me.

            I made a special effort to look for Lewis the next day when our two dorms were supposed to play intramural softball against each other.  I didn't talk to him, but I saw where he had a scratch or a mark on his face, on the right side.  I was sitting in the bleachers and I saw his face when he went up to bat and turned around when someone yelled at him.

            I think Tucker was drinking at the party.  She normally drinks rum and coke.  She did not appear to be drunk to me, and I've seen her drunk before.  She was dressed pretty much the same as everyone else.  She had on shorts and a T-shirt.  I do have a message board on the door to my dorm room.  There might have been a message on it the morning after the party, but I was so tired I really didn't pay any attention to it.

            When I saw Lewis at the softball game he appeared to be acting normally.  I would not know what to expect from someone in his shoes.       It did not appear that Tucker was enjoying the close dance with Lewis.  She looked kind of stiff.  She had her arms around him, and he had his arms around her.  I could not see her face the whole time they danced.  I do not know if she said anything to him while they danced.  I left the party a few minutes later.


TRACY L. SMITH,
Sworn and subscribed to before me, this _____day of September 200X-1


James M. Doolittle
Court Reporter


ELIZABETH A. TUCKER DEPOSITION TESTIMONY:

            My name is Beth Tucker.  I am 21 years old. I am 5 feet, 6 inches tall.  I weigh 135 pounds.  I am attending State U.  I have been here for one year.  I live in the Camelia Dorms, Building 1479, Room 134.

            I know the accused, David Lewis.  I have seen him working.  I think he lives in the dorm across the street from by dorm.  I estimate he is not quite 6 feet tall and probably weighs about 175 pounds.  This is based on comparing him to my brother who is about the same size as Lewis.  David Lewis is definitely a lot bigger than I am.

            On Tuesday, 4 July 200X-1, I did not go to class.  In the evening I went with some friends to the fireworks show downtown.  We got back to the dorm around 10 PM.

            There was a party in Michael King's room, number 220, so I went up there.  His room is on the second floor and my room is on the first floor.  I drank 3 rum and cokes at the party.  There were about 15 people at the party.  I knew all of them but maybe two people.

            I talked with Paul Frye at the party.  He is my boyfriend's roommate.  My boyfriend is John Douglas.  He has been back home for the last semester earning money to come back to school.  I don't know for sure when he is supposed to come back but he said it would hopefully be before Christmas.  Paul told me that he had talked with John and John was going to call me on the weekend.  That made me feel good and I went to tell my best friend, Tracy Smith.  I went to her room to talk with her.  I was there about 15 minutes, then went back to the party.

            On my way back, Lewis stopped me and said, "Hey, are you going back to the party?"  I told him I was, and he put his arm around me.  I pushed him away, and he said, "Aw, come on.”  I told him my boyfriend wouldn't like that, and he put his arm down.  Then we both went back to the party.

            About an hour later, Lewis came up to me and put his arm around me again and asked if I wanted to dance.  I didn't know what to do, so I looked over at Tracy, but she said to go and dance and have a good time.  I danced to two fast songs with Lewis, then a slow song came on, and before I could get away he had his arm around me and pulled me in real close for the dance.  After that I wanted to talk to King so I went over to where he was standing.  Lewis stayed with me, with his arm still around my shoulder.

            I left the party about 1 AM.  I had to be at work at 10 AM for a 12-hour shift, and I was tired.  Lewis stopped me at the door as I was leaving, and asked me, "Wanna party in my room?"  I told him, “No I'm tired.”  When I walked away he was still standing by the door.
            I went to Tracy's room, number 231, and wrote a note on her message board.  Her room is on the same floor as King's room, where the party was, but at the other end of the hall.  I then went down the stairs near Tracy's room and directly to my room.  When I got to my door I looked down the hall for a second, towards the doorway that leads to the day room.  After I did not see anyone I opened my door and went in.  I had left my door unlocked when I went to the party.  The reason I looked down the hall is because the hall light at my end of the hall was burned out at the time and it was a little dark outside my room.

            Before going to bed I went through my normal routine.  I took off my clothes and put on a nightshirt, washed my face and brushed my hair, then got into bed.  I was tired so I didn't try to read or anything.  I just went to sleep.

            I woke up when I heard the door open and someone came into my room.  I did not hear a knock.  I just woke up.  I don't know what time it was, I didn't look at the clock.  I reached up and turned on the lamp by the bed and I could see it was Lewis in my room.  I asked him, "What are you doing here?” but he didn't say anything.  He moved real quickly to my bed and sat down right next to me and sort of leaned over me.  Then he said, "Let's do it now.  I know you like to party.”  I told him, “No,” but he said "Now" in a real angry voice, and he scared me.  He put his hand over my mouth and started to get on top of me, kneeling on the bed with his knees next to my thighs.  He yanked the sheet down and pulled my nightshirt up.  He put his free hand on my breasts and was fondling them.  I tried to roll over and get away, but he was too big and strong.  His left hand was real tight on my mouth and I was afraid I was choking.  He pulled his shorts and underwear down with one hand, and kept the other hand on my mouth.  He was wearing gym shorts and a T-shirt.  He put his knee between my legs and forced them apart.  He lay down on top of me, and put his penis inside me, inside my vagina His penis was erect.  I tried to kick him, but he was too heavy.  I tried to push him away but I couldn't.  He was inside me for a few minutes.  He held my right hand down with his left hand.  I tried to push him with my left hand but I couldn't.  I remember I hit him in the face at least one time.  After he was done, he said to me, "That was so good baby.”  He stayed on top of me for several minutes, then he got up, and pulled his shorts.  Then he leaned over and told me, "Don't tell a soul.”  His voice was a whisper but it sounded fierce and scary.

I think he was in my room about half an hour.  After he left I was upset and crying.  I couldn't sit still.  About two hours passed, I think, then I took a shower and got dressed in shorts and a T-shirt.  I took the sheets off my bed and took them to the washing machine in the laundry room.  I put my nightshirt in the wash too.  Then I went to Tracy's room.

It took a while to get Tracy to come to the door.  She had been asleep.  I told her, "I have to talk to you," but she said she was very tired and wanted to know if it could wait until morning.  I told her, "It can't wait."  She let me into her room and I sat down on her bed.  I started crying again and said, "I can't believe it happened.”  Tracy wanted to know what I was talking about, and I told her that Lewis raped me.  I think I said, "Dave raped me."

Tracy was real shocked and she began to cry too.  She told me I had to call the cops, that I had to go to the hospital.  I did not want to go to the hospital or tell the cops because I didn't want John to find out.  She argued with me, but I couldn't bring myself to go.

My boyfriend called me on the weekend.  I tried to act normal, but I couldn't, and I started crying again.  I told John that Lewis raped me, and he got very angry.  He wanted to know if I had reported it to the cops but I told him I was afraid.  He told me that if I didn't report it, he would call the cops himself.

I didn't go to class the next Monday.  I still was upset and not feeling well.  My residence advisor tried to talk to me about it, but I didn't say anything.  After lunch I went to the hospital, and told my friend Lesley Hill what happened.  Hill took me to the OB/GYN clinic and told another tech there what happened to me.

They did a physical examination at the hospital.  I still had some bruises above my knees that you could see.  The bruises were about the size of a half-dollar.  I think I had a couple on each leg.  I'm sure they came from Lewis.

I did not encourage Lewis in any way that night.  I did not want to have sex with him.  I tried to fight him off, but he was too big.  I told him "No" several times.

I do not remember screaming while Lewis was in my room.  I don't know if anyone was in the rooms next to mine, but I suppose there was someone there.  He had his hand over my mouth the entire time so I couldn't scream.

The light next to my bed was off when I went to sleep. I turned it off.  I turned it on when he came into my room.  The light was off when he left; I don't remember how it got turned off.

I spoke to Lewis once at a softball game when our dorm played his dorm.  I also saw him at a party at the lake, but I didn't talk to him.  Once in a while we said "hi" to each other in the dining hall.

I have had other boyfriends besides Douglas.  I dated King--who had the party that night--a year ago, for only a few months.  We had a sexual relationship.  He still is a good friend of mine.  I might have said something to him after dancing with Lewis like “Hi sweetie," but I didn't mean anything by it.  I do not have any other boyfriends now.  John and I are dating exclusively, meaning we agreed we would not see anyone else.  I trust John and I'm sure he trusts me.

I did not tell Lewis to take his arm away from my shoulders after we danced.  I don't know why I didn't tell him, but I didn't like it.  When Lewis asked me if I wanted to party in his room, all I told him was that I was tired.  I did not say anything about my boyfriend.  I think I remember Lewis saying to me as I left the party, something like "I'll see you later."  It didn't mean anything to me, and I could have said something like, "Yeah, later."  I didn't mean anything specific, just that I would probably see him somewhere on base sometime.  I definitely did not give him my room number.  In my barracks there are no nameplates on the doors identifying the occupants.

My dorm room must have been unlocked when Lewis came in.  Normally I lock my room when I go to sleep, but sometimes I forget.  I must have forgotten that night. I was not wearing panties when I got into bed that night.  Sometimes I wear them and sometimes I don't, especially in the summer.  I was not drunk that night.  Three drinks are my normal amount.  I don't know what Lewis was drinking and I don't know how much he had to drink.  I am sure he was drinking because I smelled it on his breath.Tracy Smith is my best friend.  I tell her everything, and she tells me everything.  I have told her secrets before, expecting her to keep them secret.  The note I wrote on Tracy's message board was to call me when she got off from work the next day.


ELIZABETH A. TUCKER,
Sworn and subscribed to before me, this _____day of September 20XX-1






2 comments:

  1. Thanks so much for this blog, which I follow, and the articles. Learning both writing and oral advocacy skills for pretrial motions is critical to preparing law students to hit the ground running when they pass the bar. Your article was timely because next week students in my Comprehensive Pretrial class will argue a motion to compel in practice sessions as they prepare to finish the course with either a criminal suppression motion or motion for partial summary judgment before a superior court judge. That final pretrial motion argument is the highlight and culmination of the course. Thanks for sharing your materials. Judge Lukens, my co-instructor, and I use the case files and assignments that are included in Pretrial Advocacy published by Aspen (I'm a co-author). See www.aspenadvocacybooks.com for full information.

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  2. Ronald:

    I've seen your Aspen book and it is a great one. Thanks for sharing. If you'd like to guest post some time we would be happy to make that happen. Let me know if you want to come down for our EATS conference this year. We intend to have a separate pretrial section with specific programs if we get enough interest.

    Thanks!

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