Due to the intrinsic nature of human trafficking offenses and their relatively new presence within the criminal law, prosecutors should engage proactively in pretrial litigation to focus the case for trial.
Examples of such motion practice include:
Filing a bench memorandum to educate the court on the elements of the offense and key evidentiary standards.
Filing a motion to pose human trafficking-specific questions during jury selection.
Filing motions to narrow issues at trial and thus “smoke-out” or preclude unlawful defense theories or improper lines of cross-examination.
Example of “Smoke-out”
You can often smoke out or “see his hand” by moving to litigate part of the case on a pretrial basis, even if your motion is denied. For example, the defense gives part of its plan when it opposes the prosecutor’s: (1) motion to admit translated transcripts of recordings; (2) motion to admit 404(b) evidence; or (3) motion to admit coconspirator statements. Prosecutor’s motions to limit cross-examination (rape shield), or preclude defense evidence, can also serve this same function. For example, if you bring a motion to bar any evidence, the judge will force the opposing lawyer to reveal what he or she is planning to use and under what basis.
Filing motions to pre-admit particular pieces of evidence, such as recording transcripts, co-conspirator statements, or foreign-based translations or documents.
Filing motions to maintain court security or victim protection in a manner that will be sustained on appeal, including, when appropriate, the use of rape shield provisions, an anonymous jury, or a sealed courtroom for specific testimony.
Filing motions to identify, seize, and protect assets for future recovery by victims. In practice, it is important to “arrest the money” first because you do not want offenders to drain bank accounts as multiple offenders get arrested in a law enforcement take down.
Filing motions to stay any pending civil litigation. This should ideally be done in coordination with the victim's attorney so that they understand that you are not hostile to the victim being made whole through civil litigation, but that this is necessary to protect the prosecution. Working collaboratively, where possible, with the victim's attorney will help ensure that the victim is protected throughout the process and is most likely to feel that justice is achieved.