Often, after you prepare an individual file, the following will happen: you will close the file, look out the window, and think “this guy is screwed.” You see no defenses, the client confessed, the drugs were found in his pocket, etc. Don’t give up. Instead, go back. Look for pre-trial motions.
Anything can be the basis of a pre-trial motion. You are limited only by your imagination and the requirement that all motions be made in good-faith. So, look at the grand jury transcript – was there any misconduct? Look at the search warrant – did it particularly describe the place to be searched? Look at the indictment – does it state an offense? Are there speedy trial issues? Jurisdiction issues? Compulsory joinder issues? Anything that you legitimately believe to be a problem can be challenged.
Having said that, in criminal cases two particular areas generally provide most of the fodder for pre-trial motions. These are your client’s arrest and his subsequent interrogation – should your client have been un-street-smart enough to have talked to the police. As a result, I’m going to spend a little time talking about both motions to suppress evidence, and motions to suppress statements. Before I begin though, you may be wondering why you should bother with filing motions in the first place.
Motions offer many benefits. [Keep in mind, however, that you can only file a motion that is legally justified. You have an ethical obligation to avoid frivolous motions. All motions must be filed in good faith.] These include:
- potentially weakening the prosecution’s case;
- failing that, preserving the issue for appeal;
- using the filing of the motion as leverage during plea negotiations;
- locking the witnesses in to sworn testimony before trial; and
- educating the judge as to the facts of your case.
This last reason deserves a little more discussion.
At the beginning of criminal litigation, the prosecution has a monopoly on telling the judge the story of this case. They drew up the indictments and, if there was a bond hearing, they told the judge their theory of the offense. Motions give you the opportunity to lay out the facts as the defense sees them. For this reason, I never file boilerplate motions. Never. Nor should you. You don’t want to miss that opportunity to slow some of the prosecution’s momentum.
There’s another reason not to file boilerplate motions: judges don’t take them seriously. If a judge sees that counsel has taken the time to craft a well-written motion specifically for that case, he or she is likely to give it more attention than they would a motion that is obviously copied and pasted.
[On a related topic, be judicious with your filings. Only file motions that are justified. If you file motions on every case, the judge will give them little consideration. If, however, you are known for only filing motions when there is a genuine legal issue, the judges will take note of your filings.]Finally, a caveat. Don’t take what I say here as gospel. I offer the information on this site solely as my own approach to tackling these types of motions. Start there, but don’t stop there. Run the facts of your case by your colleagues. Question my recitation of the law. Maybe I’m wrong. Maybe the law has changed since I wrote this. This is not law school, this is a website. Treat it accordingly and do your own research.
Also, it goes without saying that I’m talking only to lawyers. If you’re a non-lawyer who thinks you can defend yourself on your Assault case by reading this, don’t be silly. Leave this site and hire a competent lawyer who knows the law of your jurisdiction.