Boulder County Bar Association

A motion is an application to a judge requesting an order, ruling, direction or the like. Pretrial motions in criminal cases are designed to assist in the preparation of the defense and prosecution for trial by determining, for example, whether certain evidence should be admitted or excluded, or what procedures should be followed for the introduction of certain evidence.

Some motions are purely legal, and may be decided based only on legal argument. Other motions require the prosecution or the defendant to present evidence through witnesses or exhibits or stipulations, and then argue the application of the law to that evidence. An evidentiary hearing on a motion may also educate the judge and the lawyers about the strengths and weaknesses of a particular case. Such an education often serves to assist in the process of plea negotiation.

The range and types of pretrial motions are limited only by the imagination. The controlling parameters are the particular needs of the case and the authority and procedures granted by the applicable statutes, procedural rules, and existing case law. Some of the more common pretrial motions in criminal cases are discussed in Chapter 7.

Sometimes, the need for filing motions can be avoided by a stipulation between defense counsel and the prosecutor. The parties can stipulate, or agree, that a matter is not at issue, or that a particular piece of evidence is not admissible. This allows parties to avoid researching and litigating an issue that is not contested.

Generally, pretrial motions must be in writing. The motion should refer to the applicable rule, statute, or case decision pursuant to which it is filed (if there is any), recite the factual grounds upon which it is based, and state the nature of the request. Motions may also be made orally in court, particularly during trial, although the use of oral motions is more limited in pre-trial proceedings.

The original motion is filed with the court, by filing the motion at the main clerk's office. If there is a particular rush, an attorney can file it directly with the appropriate division clerk as well. A copy is served on the prosecutor by delivery to his office (or by mailing). The clerk schedules a hearing, if requested.

Under local county court practice, pretrial motions must be filed within 10 days of the pretrial conference, or within twenty days of the arraignment, if the motion requires a hearing prior to trial. The clerk will then set the next appearance for hearing on the motions rather than trial.

At the hearing, the judge receives evidence, listens to arguments of counsel, makes a ruling on the merits, and enters an appropriate order. Generally, the party seeking the order has the burden to present evidence that persuades the court to grant the relief requested. This is done by presenting evidence (testimony, documents, etc.) and otherwise making a record.