Litigators and judges in the criminal justice system are usually familiar with the “friend of the court” assistance provided appellate courts by the filing of amicus curiae briefs, but they may not be aware that these nonparty briefs are occasionally filed in civil trial courts, both federal and state. Although even less frequent, amicus curiae briefs do make sporadic appearances in criminal trial courts across the nation.
Defense counsel as well as prosecutors should consider in certain cases whether the filing of an amicus curiae brief will assist the trial court in resolving a significant issue being litigated. Prime candidates for amici participation are cases involving novel issues, public policy implications, public interest, or matters likely to be beyond the judge’s general knowledge or easily misunderstood. Even though trial courts are bound to follow the precedents of their appellate courts, when a case of first impression arises at the trial level, one or more amicus curiae briefs may prove helpful.
The first step when contemplating seeking an amicus to prepare a brief in a criminal trial is to determine whether the applicable procedural rules in the jurisdiction permit such briefs in its trial courts. Every jurisdiction will have procedural rules at the appellate level governing the filing of amicus briefs on appeal. Conversely, most jurisdictions will lack any rules for the filing of amicus briefs in their trial courts. However, counsel must carefully check to ensure whether any applicable trial court rule addresses amicus briefs. Also, counsel should review the jurisdiction’s case law for guidance. It would not be unusual for a jurisdiction’s appellate court to have generated a precedent governing these filings in criminal cases at the trial level. Often, the written or unwritten rule will be that amicus briefs are in the discretion of the trial judge.
Once the parameters for filing such a brief are understood, counsel needs to seek out the appropriate source to author the “friend of the court” brief. In criminal cases, the most likely phases of the trial for this type of brief would appear to be in pretrial motion practice and sentencing. For example, a criminal defense counsel making an unprecedented federal and/or state constitutional challenge to the imposition of the death penalty at trial may wish to enlist national or local organizations with relevant expertise to provide such assistance. Similarly, a defense counsel with a client that suffers from a mental, physical, or emotional condition that will come into play during the trial may turn to a national organization that has expertise as to that particular condition to submit an amicus brief. The American Psychological Association has a lengthy history of filing amicus curiae briefs, including in criminal cases, but primarily in appellate courts and the US Supreme Court.
When approaching a potential source for the brief, counsel must have a concrete plan. Counsel must have a specific request as to what is needed in the brief, albeit always remaining flexible should the source have a better plan for the content of the brief. Counsel must be aware that national organizations, including specialized bar associations, may be reluctant to put the time and effort into an amicus brief at the trial level as that expenditure is less likely to result in creating precedent that will change the law and be applicable to other cases. This may be equally true for a statewide or regional association or organization. These organizations will usually have provided amicus assistance only at the appellate level and may have at least an informal policy against filing in trial courts. Counsel needs to counter such concerns by explaining that the issue in question, being of such import, may end up in the appellate court with the amicus brief part of the record on appeal. Additionally, even though, in many jurisdictions, a trial court ruling will not be published and disseminated throughout the jurisdiction’s court system, it may be used in other trial court cases as support for a comparable ruling, as a faux persuasive precedent. In federal district court, it is very possible that the ruling on the issue could be published for national consumption.
In recruiting an organization to author an amicus brief, counsel should be certain that the entity does not have an agenda that could color the amicus brief in a way that is unfavorable to the requesting counsel’s position on the issue to be addressed in the brief. Remember, the amicus entity is not signing on to be co-counsel on the case, but to provide an objective and authoritative ambience to a matter, to which the court is unlikely to have immediate access and the parties may be ill-equipped to provide.
The purpose of the amicus brief is to inform the trial judge of matters of which the amicus has specific knowledge and application due to its acknowledged expertise and experience in that particular sphere. In that way, the amicus brief provides context rather than overt advocacy, at least not advocacy for the defendant or the prosecution, but advocacy for certain information and its pragmatic application. The amicus in certain situations may, for example, complement an expert’s testimony, but not replace it or substitute for it. And, of course, the jury will not have access to the amicus curiae brief on the basis of it being filed in the record. Importantly, counsel needs to advise a potential amicus author of the limitations of such a brief at the trial level.
Although not controlling outside its jurisdiction, the Supreme Court provides important advice for any potential “friend of the court.” “An amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court. An amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored.” Sup. Ct. R. 37.1, Brief for an Amicus Curiae.
Faced in many jurisdictions with no rules governing trial level amicus briefs, counsel seeking such a filing will most likely have to convince the trial judge of the efficacy of a particular amicus brief as to a certain issue and request leave to file the brief in the court’s discretion. Trial courts apparently have the inherent discretion to request on their own amicus briefs for their benefit.
That same lack of rules in the trial court may cause a litigator to resort to the jurisdiction’s appellate rules governing amicus filings to forge a template for how the trial court should address the mechanics of filing the amicus brief, with appropriate exemptions not germane to a trial court.
There are a variety of ways to seek leave to file an amicus brief in a criminal trial court when no guidance is provided by the court’s rules. The amicus itself could file a letter or motion requesting leave of court to file an amicus brief, noting the consent of the requesting party, expressing its interest in the issue, delineating the reasons an amicus brief on this matter would be desirable, and discussing the brief’s relevancy to the disposition of the issue in question.
Alternatively, a comparable request for leave to file an amicus brief could be filed by a party with the inclusion of a letter from the amicus setting forth the same matters suggested for inclusion when the amicus itself initiates the request to file an amicus brief. In either approach, the preferred strategy would be to include the completed proposed amicus brief, ready for filing. If the finished amicus brief is not included, the request should include a synopsis of the proposed brief’s contents.
In seeking leave to file an amicus curiae brief in a trial court that lacks rules governing such a filing, counsel requesting amicus assistance should feel free to submit proposed rules for the court to use in dealing with the amicus brief, such as suggesting guidelines for the length of the brief, a time period for the opposing party to be able to address the brief, and/or whether the amicus author will be permitted to participate in any oral argument at a hearing on the issue in question.
Although appellate courts in some jurisdictions require a filing fee for an amicus curiae brief, it is unlikely that a trial court will require a filing fee for a “friend of the court” brief in a criminal case. The possibility of a filing fee should be determined before approaching a possible author for the amicus brief.
In most appellate courts, issues, as opposed to information, only raised in an appellate amicus brief will not be considered in deciding the appeal. This would be even more apparent for an amicus brief filed in a criminal trial court. Although likely a minority position, one state supreme court has held “[p]ermission to file” an appellate amicus “brief was, of course, tacit assurance that new arguments would not be dismissed on the ground that they had not been made in the original briefs. Otherwise an amicus curiae brief would serve no purpose.” First Nat’l Bank of Louisville v. Progressive Cas. Ins. Co., 517 S.W.2d 226, 229–230 (Ky. 1974). Nevertheless, it may be wise for counsel to inquire how the trial court will process an amicus brief’s contents into the judicial resolution of the issue.
There can be little doubt that even in a criminal trial court, an informative and well-reasoned amicus curiae brief submitted by a highly reputable entity addressing matters inherently pertinent to its realm of knowledge, experience, and expertise will enhance the court’s appreciation of the importance of the issue in question, not just to the accused or the state, but to nonparties as well, while expanding and enriching the context of the question under consideration.
