After charges have been filed in a criminal case, after the preliminary hearing in a felony case, and before a trial, a prosecutor or defense lawyer can make what are called “pre-trial motions” to make a judge make a particular decision regarding a case before the trial actually begins. These motions can affect the trial itself, the court, the evidence, witnesses and more. When a criminal attorney files a pre-trial motion on behalf of the defendant, it can dramatically benefit his client. Some of the most common pre-trial motions defense lawyers can file on behalf of their clients include:
Motions to Modify Bail
A criminal defense attorney may request the judge reduce bail for their client or that the client be released based on his own recognizance. Alternatively, prosecutors sometimes file these motions to increase bail or to request a person be required to go back to jail while awaiting trial if the defendant has violated the terms of his bail.
Motions to Dismiss
While nearly all defendants would love to have the charges against them dismissed, a motion to dismiss is reserved for situations where dropping some or all of the charges is a realistic option based on the circumstances. This is often because there is insufficient evidence, but it can also be for one of any number of other reasons, for example, severe police misconduct, a defendant’s right to a speedy trial having been violated, or the charges were filed in the wrong jurisdiction.
Motions to Suppress
Our criminal justice system is based on the prosecution presenting enough evidence to prove a defendant’s guilt. If your lawyer can have certain pieces of evidence withheld from the trial, this could make all the difference in your case. In fact, if motions to suppress the key pieces of evidence are successful then it could provide fair ground to file a motion to dismiss the charges all together if there is insufficient evidence remaining to prove the suspect’s guilt.
A motion to suppress can be critical in helping to withhold a forced or otherwise illegally obtained confession from the trial. This can also be used on physical evidence, expert testimony or eyewitness testimony. In many cases, physical evidence is withheld based on a violation of the defendant’s rights through an illegal search and seizure.
A suppression motion on a felony can be made at the preliminary hearing with proper notice or after the hearing. On misdemeanor cases, suppression motions are heard pre-trial.
Expert witnesses can be excluded based on alleged bias or lack of qualifications. Similarly, eyewitnesses may not be fairly used in a trial based on a conflict of interest or because they are an unreliable witness. That being said, motions to exclude witnesses are usually done at the trial, not during the pre-trial phase.
Motions for the Release of Evidence
When police investigate crimes, they often take many things they believe could potentially be used as evidence, even if it is not actually used to support the case later on. If you would like a piece of property back and it is not actually vital to the trial or if it is something that can be easily duplicated, like a document, your attorneys can request the evidence be released back to you.
Motions to Disclose an Informant’s Identity
When cases are based on information provided by an anonymous informant, filing a motion to disclose the identity of an informant will provide the defense lawyer with that person’s name. This can be useful for bringing into question the person’s credibility and motives.
Prosecutors are supposed to provide evidence to the defense that might help prove their client’s innocence and share information that will be used against the defendant. If a prosecutor fails to provide evidence to the defense, this could result in some evidence being withheld from trial or even in the charges being dropped in some rare situations.
These are a California-specific legal motion that allows the defense lawyer to request to know certain information from the arresting officer’s personnel file. If it is suspected that the officer may have planted evidence or have a racial bias, this could be a critical motion in your case. This is often advisable if you were victimized by police misconduct such as the excessive use of force, illegal search and seizure or a forced confession.
When the motion is approved by a judge, she will examine the file away from the attorneys and then determine what details should be revealed to the defense. The officer’s entire history will not be shared. Even so, this information is often enough to allow for the defense attorneys to bring question to the officer’s credibility and if the officer has a seriously troubling history of misconduct, it could even result in the charges being dropped altogether.
Motions for a Change of Venue
Sometimes a small town might be buzzing with news of a crime and it seems like every citizen is up in arms about the act. If this happens, the defense lawyer may file a motion for a change of venue, arguing that his client cannot receive a fair trial in that location because it will be too difficult to find an unbiased jury. Other local biases might also motivate a change of venue motion. For example, if an anti-gun advocate vandalized a local gun shop in an act of protest, their attorney may argue for a change of venue if 98% of local adults are members of the NRA.
Like motions to exclude witnesses, a motion for a change of venue is usually performed at the start of the trial itself. It’s also worth noting that these motions are rarely successful although they can play a dramatic impact in cases where they are granted.
There are many ways your defense lawyer can help protect you under the California legal system, including the proper use of pre-trial motions. This is why when looking for the right attorney, it is so critical you find someone knowledgeable about all aspects of the criminal law industry. Peter M. Liss can help you. You can contact his office across the street from the Vista courthouse by calling (760) 643-4050.