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CHAPTER 4: OVERVIEW OF A CRIMINAL CASE - Table of Contents

4.1 - Filing of Charges4.2 - Arrest and Custody4.3 - Advisement Hearings4.4 - Preliminary Proceedings4.5 - Plea Negotiations4.6 - Arraignment4.7 - Pretrial Motions4.8 - Overview of a Criminal Trial

4.7 PRETRIAL MOTIONS

GENERAL

A motion is an application to a judge requesting an order or ruling about some aspect of the case. 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.

PROCEDURE

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 opposing counsel by delivery to his or her office (or by mailing). The clerk schedules a hearing, if a hearing is necessary.

In most county court cases, the court will order that pretrial motions be filed within 20 days of the case management conference, although the court has discretion to alter this schedule as needed. If counsel have motions ready, or indicate that motions will be filed, the court will set a date for hearing on the motions in addition to setting a date for trial.

At the hearing on the motions, 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.

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