Last Updated on May 2, 2025
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 court filings called “pretrial motions” to ask a judge to make a particular decision regarding a case before the trial begins. These motions can affect the trial itself, the court, evidence, witnesses, and more. “Lawyers file pretrial motions on behalf of our clients because it can often make a major difference in the outcome of their case,” says Vista attorney Peter M. Liss. Some of the most common pretrial motions criminal lawyers can file on behalf of defendants 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. “Charges are sometimes dismissed because there is insufficient evidence, but this can also occur for one of any number of other reasons,” explains Liss. “For example, I might file to have the charges dropped against my client in cases involving severe police misconduct, if my client’s right to a speedy trial was violated, or because the charges were filed in the wrong jurisdiction.”
Motions to Suppress
“The American criminal justice system is based on the premise that defendants are innocent until proven guilty,” says Liss. This puts the burden of proof on the prosecutor to provide enough evidence to prove that my client is guilty beyond a reasonable doubt—if they can’t, then my client should walk free.”
To help minimize the amount of evidence against a client, attorneys often file a “motion to suppress,” which is a request for a judge to exclude certain pieces of evidence from the trial. “When I can get key pieces of evidence suppressed from the trial, this could mean the difference between the charges being dropped against my client entirely and their being sentenced to prison,” explains Liss.
A motion to suppress can be critical in helping to withhold a forced or otherwise illegally obtained confession from the trial. This motion can also be used on physical evidence, which is often withheld based on a violation of the defendant’s rights through an illegal search and seizure. Expert witnesses are frequently excluded based on their alleged bias or lack of qualifications. Similarly, eyewitnesses sometimes may not be fairly used in a trial based on a conflict of interest or because they are considered unreliable witnesses.
For most evidence, a suppression motion in a felony case can be made at the preliminary hearing (if prior written notice was provided to the DA and judge) or after the hearing. In misdemeanor cases, suppression motions are heard prior to the trial. Unlike other forms of evidence, motions to exclude witnesses are usually made at the trial, not during the pretrial 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 they are not actually used to support the case later on. If you would like a piece of property back and it is not vital to the trial or is something that can be easily duplicated, like a document, your attorneys can request that 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. ‘”Defense attorneys often file these motions in cases involving confidential informants because only then can they question the individual’s credibility and motives,” says Liss.
Discovery Motions
Prosecutors are supposed to provide all evidence they discover to the defense, including that in possession of law enforcement. This information can then be used to help prove the defendant’s innocence or to give the defense attorney a chance to devise a reasonable way to challenge the evidence. When prosecutors fail to provide evidence to the defense lawyer, this evidence could be withheld from the trial or even result in the charges being dropped if the case hinged on it. “In San Diego County, however, the District Attorney typically provides all evidence requested within their possession, so motions to compel discovery are usually unnecessary,” explains Liss.
“When a civilian party has relevant information, then a subpoena for their records is the appropriate tool for obtaining the documents,” says Liss. “As a criminal defense attorney, I can file subpoenas on behalf of my clients, which can be enforced by the courts when necessary.”
Pitchess Motions
California-specific legal motions allow the defense lawyer to request 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. “I am most likely to file a Pitchess motion if my client was victimized by police misconduct, such as the excessive use of force, illegal search and seizure, or a forced confession,” says Liss.
When a judge approves a Pitchess motion, they will examine the file away from the attorneys and determine what details should be revealed to the defense. “While the judge will not share the officer’s entire history,” explains Liss, “this information is often enough to allow me to question the officer’s credibility. If the officer has a seriously troubling history of misconduct, this could even lay the groundwork for me to have the charges dropped altogether.”
Motions for a Change of Venue
Sometimes, a small town might be buzzing with news of a crime, and nearly 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, motions for a change of venue are usually filed at the start of the trial rather than in the pretrial phase. These motions are rarely successful, although they can have a dramatic impact in cases when they are granted.
There are many ways your defense lawyer can help protect you under the California legal system, including the proper use of pretrial motions. When looking for the right attorney, you must find someone knowledgeable about all aspects of the criminal justice system. “I can help you,” says Liss, “please contact my office to schedule a free initial consultation by calling (760) 643-4050.”
Related Article: While police departments are not yet required to document when they use AI technology to complete a police report, this may be a future issue subject to pre-trial motions.
