Sometimes pretrial motions can be very effective weapons in a criminal case.  Most motions that can filed that would have the effect of getting a case dismissed, or trimmed down significantly. All motions have to be ruled upon by the judge.

Juries don’t typically decide motions in criminal cases.  For example, if there was an illegal search of somebody’s car or their house, the defense attorney would have to file that motion with the judge and then the judge would rule on that prior to trial.

Motion to Suppress Evidence – Penal Code 1538.5

So, let’s say for example, the police pull somebody over, illegally search their car, find a weapon and then charge the person with possession of a loaded weapon in a vehicle, and also maybe they find some drugs so they charge him with possession for sale of drugs.  With this combination of crimes, the person is looking at going to state prison.

So, the lawyer gets the case, reviews it and sees that the police really didn’t have any justification for searching the car and the client didn’t give any consent to search the car.  So, the defense would file a motion to suppress any of the evidence found in the car based on the illegal search of the car. A motion to suppress evidence is described under California Penal Code 1538.5. Pretrial Motions in California Criminal Cases

The prosecutors would respond, and ultimately, it would be the prosecutor’s responsibility to call witnesses and show that it was a legal search.  So, they would typically be calling the police who made the search.

The defense would get a chance to cross-examine the police.  The judge would listen to all of the evidence.  The defense could certainly call any witnesses that they deemed appropriate.

Ultimately the judge would rule on the motion, and if the judge granted the motion under those circumstances, the case would likely be dismissed because all of the evidence that was found in the car would be suppressed and couldn’t be used against the defendant.

It’s unlikely in that scenario that the prosecutors would have a different way to prosecute the defendant.  So, that’s one example of a pre-trial motion that could be filed to try and attack the prosecutor’s entire case and get it dismissed.

Motion to Exclude Certain Evidence

There’s other examples.  If you think you’re going to go to trial, maybe there’s some evidence that you don’t want the prosecutor to get in as a defense attorney, so you file a motion with the judge saying the prosecutor shouldn’t be able to get in whatever evidence you think they’re going to try to get in that’s not permissible.

You’d say why it’s not permissible.  The judge would probably rule on that motion right before the trial.  In a lot of the courthouses, you’re sent out to a judge on the last day of the case being prepared for trial and then that judge has to rule on all of the motions by the defense and the prosecution.  Sometimes the prosecution will file a motion to get in certain evidence or to keep certain defense evidence out.

The reason these motions are filed prior to trial versus during the trial is because the courts are trying to save time and not have the jury sitting there waiting while motions are litigated outside their presence.

It’s nice if you can litigate and deal with all of the motions before the trial because that will cause the trial to go much more smoothly, but what ultimately ends up happening is issues will come up during the trial that require the judge to rule on certain things outside the presence of the jury.  It just simply can’t be helped.

Litigating Motions Before Trail

Another reason you want to get a lot of these motions ruled on before the trial is because you’re going to get a chance to do an opening statement.  You don’t want to mention certain evidence.

You don’t want the prosecutor mentioned certain evidence that you don’t want to be in the trial, so you want to have all of that ruled on before you do your opening statement.  Plus, you want to build a theory of your case and if you don’t know if certain evidence is going to come in or not, then it’s going to be very difficult to build that theory.

For example, let’s say they’ve got your client’s statement and there are some issues with them advising him or her of their Miranda rights, you want that ruled on right away.

Because you want to know whether your client’s statement is coming in so you can deal with it right from the beginning in your opening statement and as you cross-examine witnesses you may want to get into tangentially, some of the issues surrounding your client’s statement, so you need to know if it’s coming in or not.

The prosecutors need the same thing because they may want to use your client’s statement in their opening statement so they can show the person is guilty because maybe your client admitted certain things.

There’s all sorts of motions that can be filed.  The thing I don’t like is when clients think that they just have to get a bunch of motions filed in their case when there really doesn’t need to be any motions in their case and they’re not applicable for their particular case.

I don’t lie to clients and try to build it up, like all these motions are going to be filed in their case, because if it’s not applicable to file a motion in a case, there’s no reason to do it and you’re just going to look like a fool in front of the judge and waste a bunch of time.

Pretrial Motion Strategy With Your Criminal Lawyer

Let your defense attorney decide whether there’s any motions.  You don’t decide.  If you see certain things after you do some research and talk to people, and obviously you know your own case and you think maybe a motion is applicable.

Of course it is permissible and makes sense for you to go to your attorney and say, here’s what I’m thinking.  Does this make sense to you?  If it does, the attorney can follow-up on it, investigate it, file a motion, litigate the motion, but if it doesn’t make sense, most good attorneys are just going to tell you no, that doesn’t make sense.

Were not going to do that.  That’s not going to yield any benefit.  In fact, that’s just going to simply make the judge angry and the judge is going to perceive us as not knowing what we’re doing.

So, there’s not motions that are filed in every single criminal case.  It has to be relevant to the case and the motion itself has to be relevant to the facts of your case in order to actually file it and get some sort of benefit from it.