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Pre-Trial Motions

Pre-trial motions are tools used by the prosecutor and the defense to set the boundaries for a trial, if a trial is going to take place. When an attorney files a motion, they are asking the judge to make a decision prior to trial. The importance of the pre-trial motion depends on the kind of case, the severity of the charges, the strength of the prosecution's case, and other factors. A successful pretrial motion can profoundly change the course of a trial if used effectively.

This article discusses the types of pre-trial motions that can be made and when in the criminal justice process they are made.

When Are Pre-Trial Motions Made?

There are several hearings before a case finally goes to trial.

  1. There may be an initial hearing, or arraignment hearing, where the accused hears the charges against them.
  2. There may be a bail hearing where a judge sets bail or denies bail.
  3. There may be an initial pretrial conference where the two sides report on the status of the case, secure or exclude evidence, change venue, or attempt to end the case.
  4. There may be a final pretrial conference before the trial.

Pre-trial motions are made to secure or exclude evidence, to change venue, or to end the case. These motions are made by attorneys on either side after a preliminary or initial pretrial hearing and before a criminal case goes to trial.

Common Pretrial Motions

Pretrial motions include the following:

  • Motion to Discover (asking for a release of evidence): Before trial, both parties exchange information regarding witnesses and evidence they will prevent at trial. The point of a trial is not to win, it's to get to the truth. Each party needs time to prepare, and that includes time to prepare to rebut what the other side has said. A motion to discover is a request to the judge to order the other side to share evidence. A Motion to Depose asks for a prospective witness to be interviewed.
  • A Competency Motion asks the court to first determine if the defendant is competent to stand trial.
  • Motion to Dismiss: The defense may ask the judge to make a legal ruling that there is not enough evidence to prove a crime or that the evidence that has been obtained doesn't constitute a crime. They are asking that the charges be dismissed and no trial take place.
  • Motion to Change Venue: In a high-profile criminal case, the defense or prosecution may be concerned that the trial will not be fair because pre-trial publicity would make it hard to find an impartial jury. An attorney may ask for a change of location. This may be awarded in heavily publicized cases where the jury pool could be prejudiced against the defendant.
  • Motion to Suppress: In this case, the defense or the prosecution asks the judge to restrict some evidence or statements from being introduced at trial. If the police did not have "probable cause" to arrest the defendant in the first place, the defense attorney may file a motion to suppress statements made to the police before the arrest. A defense attorney could ask for a motion to suppress inadmissible evidence that was illegally obtained or beyond the scope of a search warrant. They may ask to suppress certain witnesses who have a conflict of interest. Or, for example, a prosecutor may ask that an elderly neighbor with Alzheimer's disease be excluded as not legally competent to testify. Motions in limine is a legal term that refers to a motion to exclude evidence that may have some value at trial when there is a greater danger that the evidence would be unfairly prejudicial or misleading or would confuse the jury.
  • Motion for Summary Judgment: The purpose of a trial is to get to the facts of a case — to determine guilt or innocence. If the facts are undisputed — if everyone knows a person is guilty or innocent — there is no need for a trial. An attorney may move for summary judgment. That means, they ask the judge to issue a decision based on the agreed-upon facts.

Other Types of Pretrial Motions

There are procedural pretrial motions.

  • Motion for Speedy Trial (to hold the trial within 60 days)
  • Motion for an Extension to file a complaint against a defendant
  • Motion to Amend, that is, to make changes to a defective warrant, summons, or complaint
  • A defense attorney may also move before trial or even during the trial that the jury selection process itself department from legal requirements governing the selection of jurors.

There are also motions about the scope of a trial

  • Motion for Joint Trial, for two or more defendants to be tried at the same time
  • Motion to Consolidate a Trial, if defendants have multiple grand jury indictments they could all be heard at the same time

Get Legal Help to Better Understand Pre-Trial Motions

Which pretrial motions will be most effective depends entirely on the facts of your case and the applicable law. The best way to determine which pre-trial motions to file is to consult with a local criminal defense attorney who can not only answer any questions you may have but also file the motions on your behalf.

You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help

Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.

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Next Steps

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