Introduction to Criminal Court Motions
Criminal court motions play a pivotal role in defining the course of justice during criminal trials. A motion may best be described as a formal request or application that seeks a specific order from a judge or other presiding officer. The precise particulars associated with the filing and granting of motions varies from court to court, and can be subject to local rules that govern their use.
In general, the motion work that an attorney does in a successful criminal case can have a major influence on the ultimate outcome of the case. Even at the administrative level, motions play a significant role in criminal court work, and can serve to facilitate communication between an attorney and the court.
From a broader perspective, motions are a formal means of "speaking" to the court. Often, motions are the first step to securing needed relief , but they can also serve as practical means of narrowing issues for trial or closing the door on certain arguments. It’s important to understand that motions are not limited to the trial phase of a case. For example, a motion to dismiss can be made before a case even goes to trial. An attorney may also submit a motion in regard to sentencing.
Motions can also be summarily filed after an initial court appearance. In some cases, the defense will ask for a preliminary hearing, which typically results in a motion. In essence, the filing of a motion provides the attorney with an opportunity to ask the court to exercise its discretion in any of a number of ways.
There’s no limit to the types of motions filed, and it’s possible for motions to be made before, during or after trial by either the defense or the prosecution. Given that the outcome of a motion can alter the trajectory of a criminal court case, it’s impossible to dismiss the importance of this critical step in the judicial process.
Motion to Dismiss
A motion to dismiss is a request by a defendant to end the prosecution early in the process. This is a type of pretrial motion, which is one that occurs before a trial has actually begun. Defendants generally file motions to dismiss with their defense attorney. If they don’t have an attorney, they may file them on their own.
Defendants may file motions to dismiss in the preliminary stages of a legal action, or anytime after in the case. Basically, this request asks the judge or magistrate to determine that the prosecution’s evidence is not strong enough to proceed to trial, that certain legal errors have been made, or that the court does not have jurisdiction (the power) to move forward with the prosecution.
This type of motion is filed when defendants believe the case should end and that the prosecutors do not have strong enough evidence to proceed. In some cases, this also applies to legal mistakes on the part of the prosecution or improper jurisdiction by the court.
A motion to dismiss focuses on legal errors by the prosecution, not on the actual evidence of the case. A judge may grant this motion only if he or she believes there is a lack of evidence to support proceeding with the prosecution, or if there is a legal reason to dismiss the case such as when it involved double jeopardy (which means the defendant is being prosecuted for the same crime twice), or if the trial did not follow due process (due process requires the government to follow the rules when pursuing a case such as providing the defendant with a fair and speedy trial).
Defendants may use a motion to dismiss to show the court that the case against them is weak and that there are mistakes in the prosecution’s case. Defendants may also use these motions in plea negotiations. A judge may choose to dismiss the case altogether or specific aspects of the case. However, a judge does not have to grant a dismissal just because the prosecutors recommend this action.
Unlike motion to suppress, defendants cannot re-file a motion to dismiss once it has been denied. A motion to dismiss seeks to prevent prosecution of the case, while a motion to suppress seeks to prevent certain evidence in the case from being used at trial. Once a judge denies a motion to suppress, this generally encompasses all evidence that may have been part of that motion.
Motion for Discovery
In criminal court, the prosecution is given discovery concerning the evidence and witnesses it intends to present at trial. The defendant counterparts also have access to the prosecution’s evidence and witnesses because this right is part of the right to due process and a fair trial. If the defendant wants to go fishing for additional information concerning the case, that information has to be requested and there are different types of motions that can be used to obtain what is being requested.
This motion for discovery allows for the collection of evidence that is in the hands of someone other than the prosecution and evidence that is not known to the prosecution. The evidence may be in the hands of witnesses, police reports or civil discovery when the same facts have been covered in a civil lawsuit. The evidence sought can range from a service record for a witness that the prosecution may call to bodily fluids in a rape prosecution. A witness may have service records that put him or her in a location other than the place of the witness interview or a rapist’s bodily fluid evidence may be compared to the bodily fluid of an alleged rape victim. Discovery motions also are used to get a defendant’s statements to the prosecution.
The prosecution tries to provide timely discovery to the defendant but the defense may not fully appreciate the nuances of discovery and evidence. The defenses and the prosecution study the motions for discovery to prepare their trial preparation. When the defendant fails to cooperate on discovery, the courts will have no sympathy for the defendant’s tardiness or failure to provide requested material.
Motion to Suppress
A motion to suppress evidence is filed when a criminal lawyer believes there is a constitutional violation with the methods used to gather that evidence. In layman’s terms, the police may have violated your Fourth Amendment right against illegal search and seizure. Misdemeanor cases may also have motions to suppress evidence if, for example, a defective warrant was issued for the search of a room or the seizure of a computer.
Even if the court agrees to the prosecution’s second request for a (pre-trial) suppression hearing, (i.e., a "frank hearing" or "Franks hearing"), the trial court is generally obligated to hold the hearing. Franks v. Delaware, 438 U.S. 154, 155 (1978). The Supreme Court also stated: "[T]here is a presumptive truthfulness of the matters asserted in an affidavit supporting probable cause to obtain a search warrant. To prevail at the hearing, the moving party must show that the allegedly false statement was both material, in the sense that the remaining portions of the affidavit support probably cause, and knowingly or intentionally or with reckless disregard for the truth." Franks, supra, at 156.
Search and seizures are such a significant part of criminal law, that you will find the special rules and standards set for the suppression of evidence in Judge Steven Reinhardt, of the United States Court of Appeals for the Ninth Circuit, Criminal Law Handbook (2002), Chapter XI, pp. 207-231.
Motion for Continuance
Motions for Continuance are requests to postpone a scheduled hearing or trial. These motions are always discretionary with the judge, meaning that there is no right for a defendant to ask for and get a continuance just because he or she has filed a motion for continuance. Our law does provide a judicial structure within which a judge can use his or her discretion in allowing a continuance. The main reason for the motion to stay is to get more time to prepare for trial. In some cases, witnesses may be unavailable to appear at the trial because of schedule conflicts or otherwise being out of county or out of state.
What happens if my case is continued?
If you get your trial continued, the judge will try to set a new trial date at the time the case is continued. Sometimes the new trial date can be months away so when your case gets continued, make sure you ask the judge to set a new trial date. When a trial date is set, the case is an "active pending case", which means that the court will send out a notice of the trial date to all parties so they know that the trial date was set.
If your case is continued and the new trial date that was set by the judge is more than three months away from the hearing date, you should be able to get a full refund of your filing fee to appeal. Under a new law effective October 1, 2013 and codified into N.C.G.S. 7A-210(a), "Upon petition, a defendant shall be allowed a full refund of the filing fee after a trial date is delayed for more than three months."
If your case is continued and the new trial date that was set by the judge is less than three months away from the hearing date, you can not get a full refund of your filing fee to appeal. Under the same new law effective October 1, 2013 and codified into N.C.G.S. 7A-210(a), "Upon petition, a defendant who has had a trial date set more than three but less than six months from the conclusion of the clerk’s entry of judgment shall be allowed a refund of one hundred dollars ($100.00) of the filing fee."
If your case is continued and the new trial date that was set by the judge is less than three months away from the hearing date and you are disappointed that you will not get a full refund, on the appeal documents to the Appellate Division, you can indicate that you wish to appeal the law. Under N.C.G.S. 7A-210(a), an individual may petition to have the law reviewed by the Appellate Division to determine the constitutionality of the law.
If the judge grants your motion for continuance, you will be required to file a written waiver of your right to a speedy trial and a notice of new trial date signed by all parties. If you do not sign and file the waiver of right to speedy trial and notice of new trial date, the judge can dismiss your criminal charge pursuant to N.C.G.S. 15A-954, which says a trial "shall not be further postponed, in any court, except with the consent of the defendant."
However, the law does say that the case could also be "set for trial before a jury when the defendant is not present during the jury selection process…." N.C.G.S. 15A-954(c). If you do not waive your right to a speedy trial, you could still be tried even though the judge set a new trial date on your case.
Motion for Change of Venue
A motion for change of venue requests a transfer of the case to another court. The reason a party seeks to transfer a case is often because they feel the publicity surrounding their case has created prejudice, making it nearly impossible for them to receive a fair trial. A party may also seek a change of venue if they do not believe they will be able to find an impartial jury in the locality.
The motion for change of venue (also known as a "motion to change venue") is governed by Penal Code section 1033 et seq. and, where applicable, People v. Archerd (1970) 3 Cal.3d 615. The motion can be granted for many reasons, including, but not limited to, if the parties cannot obtain an impartial jury or if the jury pool comes from a small and isolated community.
A motion for change of venue may also be filed before an indictment is returned against a defendant. (People v. Williams (1988) 45 Cal.3d 1253, 1277.) The defendant need only show that there is a reasonable likelihood that he cannot receive a fair and impartial trial in the county where the said court is. (Ibid.)
As with all pretrial motions, California Supreme Court and Court of Appeal decisions must be taken into account. Prior to hearing , the court may receive affidavits from either side, but it may not be heard on the basis of hearsay. The moving party has the burden of showing that a fair and impartial trial cannot be had in the court proposed to hear the matter. (People v. Gonzalez (1998) 64 Cal.App.4th 425, 432.) A decision by the trial court regarding the motion is discretionary and will not be disturbed on appeal unless the court used its discretion in an arbitrary, capricious or patently absurd manner. (People v. Horning (2004) 34 Cal.4th 871, 904.) It is within the trial court’s discretion to declare a case complex pursuant to Penal Code section 1050. (People v. Redd (2008) 55 Cal.4th 1211, 1225; People v. Williams (2008) 43 Cal.4th 584, 610.) However, a criminal trial should not be declared complex except in broadly exceptional circumstances. (People v. Redd (2008) 55 Cal.4th 1211, 1225.)
A motion for change of venue varies from a motion to change judge or venue in a civil case in that the latter is based upon showing that the judge or venue vehicle is biased or prejudiced. The former, however, does not require a showing of bias or prejudice provided it cites outside influences that are harmful to a fair trial.
Motion for Severance
A motion for severance seeks to separate charges or defendants when prejudicial joinder would prevent an alleged criminal from receiving a fair trial. A defendant may be denied a fair trial when evidence of one crime is admissible against him but not in a case where he is present on multiple counts. An example of this could be in a case involving multiple conspirators. Although evidence against one of the conspirators would be admissible against all of the conspirators, it may not be permitted against a defendant who’s only crime was going along for the ride.
Severance requires that the defendant would otherwise face prejudice from having been charged with multiple offenses or multiple defendants in the same prosecution. When determining whether there is a severe danger of prejudice if charges are not severed, some factors the judge considers include: A successful motion for severance often allows a defendant in a drug trafficking or drug dealing case or other criminal case to have evidence excluded that would connect him to other defendants or other crimes. A successful severance can also cost the state the ability to use out of court witnesses statements against co-defendants.
Motion for Judgment of Acquittal
"At some point during the trial in a criminal case, the defendant will likely want to ask the judge to throw the case out. Sometimes it is a motion for a directed verdict, and sometimes it is a motion for judgment of acquittal, but we are really talking about the same thing. The defendant wants the judge to rule that no reasonable jury could find the defendant guilty beyond a reasonable doubt. If the judge agrees, the judge will enter an order of acquittal and the trial is over. There are a few different times a motion for judgment of acquittal can be filed. It is often filed once the Prosecutor finishes presenting his/her evidence. In that situation, the defendant (actually the attorney representing the defendant) will make an oral representation to the court and ask that the case be dismissed for the reason that a reasonable jury could not find the defendant guilty beyond a reasonable doubt. The judge (often over the defense’ objection) will then give the Prosecution an opportunity to present evidence. Because the Prosecution puts their case on first, as a practical matter, the defendant’s attorney will often wait until after the jury has deliberated to file the motion for judgment of acquittal. After the jury finds the defendant guilty or not guilty, the defense attorney will often orally renew the request for judgment of acquittal/judgment notwithstanding the verdict. Another example of a motion for judgment of acquittal is when the defendant files the motion after the court has entered a conviction and before sentencing. Again, the attorney for the defendant will represent to the judge that the court should enter a judgment of acquittal because no reasonable jury could have found the defendant guilty. Of course, the judge is not required to agree with the defendant’s request. Rarely does a judge grant the motion, but it does happen. In some situations (particularly where a higher court has given the judge guidance on how the judge can decide the motion) it is a great tool for the defense. In most instances, the trial judge may not set aside the verdict unless it appears that the jury, considering all the evidence, could not reasonably have arrived at the verdict. The motion for judgment of acquittal is not a new trial, but the judge is asked to consider whether the verdict was against the manifest weight of the evidence. The Ohio Rules of Criminal Procedure provide "A motion for judgment of acquittal . . . may be made by a defendant or by the court, either at the close of the evidence offered by the prosecution or after a verdict or finding of guilty . . . ." The burden on a defendant in a motion for judgment of acquittal is "very slight," although it appears that it is slight only in comparison to the burden on the prosecution of proving a defendant’s guilt beyond a reasonable doubt. A defendant may prevail on a properly supported motion for judgment of acquittal if the evidence is such that reasonable minds, reviewing the evidence, could not find the accused guilty beyond a reasonable doubt. The trial court must view the evidence in the light most favorable to the prosecution and resolve all conflicts in the evidence in favor of the prosecution. If the trial court has a reasonable and fair doubt as to the defendant’s guilt, the court must enter a judgment of acquittal."
Other Typical Criminal Court Motions
Motion in limine is a pretrial motion to exclude certain questions from evidence. If you’re a fan of the Law & Order-type shows on television, you may have seen many of these motions. On these shows, the defense uses motions in limine when they believe that an important witness, such as the defendant himself, would be prejudiced by allowing evidence of prior convictions or other bad acts into evidence. Motions in limine can also be used regarding the introduction of any other type of evidence at trial which may unfairly prejudice a jury against a defendant.
A motion to compel is a request that the Court issues an order to another party to do something. A common motion to compel that I frequently ask for is to compel the State to turn over discovery. In criminal cases, once you ask the prosecution for discovery (the evidence the state will present against you), they must provide what they can and either let you know what they are still gathering or let you know that they’re done gathering evidence. If they don’t let you know within 30 days, a motion to compel can be filed.
A motion to continue is a request to postpone a matter. If you’re represented and you request a postponement, the Court goes ahead and postpones the matter. If you’re not represented and want to postpone, you have to make an oral request to the Judge at the time the case is scheduled. Most Judges will grant a simple motion to continue if you have a personal matter, such as a medical procedure or important family obligation that cannot be missed, that prevents you from attending court.
Conclusion: The Value of Motions for the Defense
Motions in criminal court are a vital part of the legal process and should not be taken lightly. While some motions may appear as trivial requests, even a minor mistake in filing a motion could turn out to be disastrous in your case. A bad or defective motion may even result in your motion being denied altogether.
While it is important to file any and all motions that you believe may help your case, it is also important to realize that motions and the overall motion strategy can have both serious consequences and benefits. While a good motion may benefit you greatly, a bad motion or an incomplete motion could be considered a sign of bad faith or naivety by the judge or jury. While it is always in your best interest to file a motion if you believe that the defense or appeal it could provide is worth exploring, in most situations it often makes sense to wait until a later date when the motion can be fully drafted and ready to impress the judge and jury as opposed to rushing in and filing a motion too quickly and risking a poorly drafted motion or negative rulings which could impact the rest of your case .
Even if you have a motion you believe is compelling or that you feel could greatly improve your chances of winning your case, you should consider having a qualified and knowledgeable criminal defense attorney handle your motion strategy. Not only can a qualified criminal defense in Duluth, GA lawyer help you fully understand and explore whether or not a motion is worth filing in the first place, but a knowledgeable criminal defense attorney in Duluth can also help your motion strategy by ensuring that each motion is filed correctly and in a timely fashion. Overall, while motions in criminal court are just one part of the process, they can have a major impact on the outcome of your case so taking the time to master and understand them is critical.
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