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Environmental Law

: Environmental Crimes Blog

Another Motion

By Walter James

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In virtually all environmental criminal trials, the case will have a significant discussion of ?hazardous waste.? The term ?hazardous waste? is defined in various places, including at 42 USC § 6903(5). In short, it is a legal definition. When you are trying a case, do you want just anyone giving a legal opinion? Probably not, especially if a criminal conviction hangs in the balance.

A tactic that can be used to attempt to limit legal opinion testimony is the use of the motion in limine. In the government?s case, there is a real tendency of the government inspectors and investigators, as well as their technical people, to refer to substances as ?hazardous wastes? and attempt to interpret the various definitions outlined in the environmental statutes. They also can and do attempt to offer opinions and conclusions of law even though they were not trained in the law, but were rather trained as criminal investigators and enforcement agents.

Such opinion testimony is highly improper, and is prejudicial as well. Such testimony injects the ultimate opinion of law into the case; something that is within the sole province of the Court. To address these concerns, the file a motion in limine to keep unqualified persons from expressing opinions of law. Terms such as ?knowingly,? ?willfully,? ?hazardous,? ?material,? ?treatment facility? and ?solid waste? have specialized meanings under the law. The motion in limine is a good way to educate the Court and, if granted, limit the use of these words while government witnesses are testifying.

It may seem like a small victory at the time; however, obtaining a favorable ruling on the motion in limine may be a key ruling preventing the government from portraying your client as purveyors of hazardous materials without regard to the environmental hazards associated with the handling of those materials.

More later.

As always, feel free to call me or e-mail me with any questions at walter.james@jamespllc.com.

WDJiii

Full post as published by Environmental Crimes Blog on March 17, 2010 (boomark / email).