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Pretrial Criminal Motion Practice
By: Attorney Jeffrey W. Jensen
An extremely important part of defending any criminal case, and something that is often neglected (even by experienced lawyers), is motion practice. Almost by definition, in a criminal case the facts will be stacked against the defendant. A prosecutor chooses the cases he charges and, further, he has an ethical obligation to choose only those cases he believes in good faith he can prove beyond a reasonable doubt. So it is no wonder that most prosecutors have a conviction rate well over ninety percent.
Not everyone has the personality necessary to be an effective criminal defense lawyer. Such people have a quirk in their personality that compels them to always get the "right answer". If this is your approach to defending a criminal case then, without a doubt, you are in the wrong line of work.
"Not everyone has the personality necessary to be an effective criminal defense lawyer"
Even well-crafted motions in criminal cases have a relatively small chance of success. Thus, you will almost always be "right" if you advise your client that a certain motion to suppress has little chance of success.
In mounting a successful defense, though, refraining from filing a motion because the judge will probably not grant the motion is not the "right" answer for your client. There are some very important reasons why every motion of arguable merit should be filed. These reasons include: (1) There is a chance that the motion will be granted; (2) Motions that require an evidentiary hearing are an opportunity to hear and to cross-examine the state's witnesses under oath and to get a transcript; (3) The motion process educates the judge concerning your theory of defense prior to the trial; (4) The motion process may suggest to the prosecutor that his charging decision was wrong- which clearly aids in settlement discussions.
Finally, no honest discussion of criminal motion practice would be complete without the admonition that there is a very good chance that the defense will not succeed entirely and that the case will end up in postconviction and appellate proceedings. Like the doctor who orders every possible test in order to avoid criticism if something is missed the criminal defense lawyer must alway practice "preventative medicine" by raising every possible legal issue for the defendant. It is much easier (emotionally and professionally) to raise an issue when it is appropriate than it is to later testify at a postconviction ineffective assistance of counsel hearing about why you did not file a certain motion. You may have had the "right" answer but a defendant who is serving a long prison sentence (and his postconviction lawyer) will not see it that way.
Procedural Motions
Procedural motions include: (1) Motions challenging probable cause in the complaint and/or the preliminary hearing; (2) Motions to sever defendants and/or counts from a single complaint; (3) Motions challenging the charges on grounds of multiplicity or duplicity; (4) Motions challenging the constitutionality of the statute; and, (5) Motions in limine seeking preliminary rulings on the admissibility of evidence. A detailed discussion of each of these motions is well beyond the scope of this article. However, you may examine many examples of these motions on this web site.
Generally, though, a motion challenging probable cause argues that the facts alleged in the criminal complaint or presented at the preliminary hearing were insufficient to cause a reasonable person to believe that the defendant probably committed the crime alleged. Defendants may be severed ("tried separately") where trying them together would create unfair prejudice to one of the defendants. "Multiplicity" is an unconstitutional charging practice in which the prosecutor divides what is really one crime into a number of separate charges (violates the double jeopardy clause); whereas "duplicity" is charging as one crime what is really a number of separate crimes (violates the defendant's right to a unanimous verdict) Criminal statutes may be unconstitutional for many reasons; however, the most common arguments are that the motion is "overly broad" (that is, it prohibits behavior that the government is not allowed to regulate) or "unduly vague" (the words of the statute are so confusing that no one can tell what behavior is actually prohibited).
Fourth/Fifth Amendment Motions
It is a rare criminal case that does not have one or more motions to suppress evidence. This is because the law provides that a warrantless search or arrest is per se unreasonable- subject to some narrow exceptions. When a warrantless search or arrest is challenged by the defendant the burden of proof shifts to the state to present
"It is a rare criminal case that does not have one or more motions to suppress evidence"
evidence that one of the exceptions to the warrant requirement existed. In other words, any time the police search a private area without a warrant- or arrest a person without a warrant- upon motion by the defendant the court will find that the search or arrest was, in fact, unreasonable, unless the state can present witnesses and other evidence establishing that an exception existed.
Thus, these types of motions almost always result in an evidentiary hearing (i.e. the police must come to court and testify and be subject to cross-examination)
Some of the exceptions to the warrant requirement are: (1) various automobile and "incident to arrest" exceptions; (2) consent; and (3) probable cause to arrest combined with exigent circumstances (that is, the police may make a warrantless entry into a home where they have probable cause to arrest a person for a serious crime, that person is inside the residence, and there is reason to believe that unless the police act immediately the person will escape, evidence will be destroyed, or a someone inside the residence is in grave danger of death or great bodily harm.
You may find seachable versions of this article, and many other articles as well as frequently-asked legal questions on the Jensen Defense Wiki.
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