Criminal Law

Getting Ready for a Criminal Trial: Pretrial Motions

Motions filed prior to the start of a criminal trial can impact how, and if, the case goes forward.

Before a criminal trial begins, both the prosecution and defense have the opportunity to file pretrial motions. These motions can affect many issues, such as the location of the trial, introduction or exclusion of evidence or testimony, and which charges will be tried. In other words, the court’s pretrial-motion rulings set the stage (including the boundaries) for trial.

Pretrial Motions

The judge—not the jury—decides pretrial motions. Some common pretrial motions are:

  • motion to suppress (evidence or testimony)
  • motion to compel (production of evidence or testimony)
  • motion for a change of venue (trial location), and
  • motion to dismiss (charges or the case).

Motion to Suppress

Most likely, you’ve heard about motions to suppress. With a suppression motion, an attorney asks the judge to exclude certain evidence or testimony from the trial—typically, based on the evidence being illegally obtained.

For instance, a defendant might argue a police officer acquired evidence in violation of Fourth Amendment by conducting a search without a warrant. (See our article on search-and-seizure law.) Another example is a motion to suppress a defendant’s incriminating statement taken without a “Miranda warning.”

A judge who concludes that evidence or a statement was obtained in violation of the defendant’s constitutional rights is apt to exclude it from the trial.

Motion to Compel

In context of a criminal case, a motion to compel usually involves requesting that the court order a witness to testify or the other party to turn over evidence. For example, a prosecutor has a duty to turn over certain evidence in its possession to the defense. This disclosure duty includes “exculpatory” evidence—evidence that may prove the defendant’s innocence. A defense attorney who has reason to believe the prosecution is withholding information might file a motion to compel asking the judge to force the prosecutor to hand over evidence.

Motion for Change of Venue

A motion to change venue asks the judge to move the trial to a different location. The venue for a criminal case is generally the location where the offense occurred. If the criminal charges resulted in widespread pretrial publicity, the defense might seek a change of venue to protect the defendant’s right to an impartial trial. Other reasons for a motion for change of venue include improper venue (meaning the crime didn’t occur in the court’s jurisdiction) or in the interests of justice. “Interests of justice” is a catch-all phrase that could include travel costs, location of witnesses or evidence, or other reasons.

Motion to Dismiss

As the name implies, a motion to dismiss asks the judge to dismiss certain charges or the entire case. If there have been significant delays in the trial, the defense may file a motion to dismiss the case based on a violation of the defendant’s right to a speedy trial. Another basis for a motion to dismiss is a constitutional challenge to the statute under which the defendant is charged. If the criminal statute is unconstitutional, it cannot be used as a basis to convict. If granted, dismissal is the best-case scenario for a defendant. It means the defendant doesn’t have to go through the expense and embarrassment of a trial.

Questions for Your Attorney

The pretrial motion stage is an important, strategic step in a criminal trial. The results may narrow issues for trial, aid in plea negotiations, provide vital information, or even end the case. Here are some questions you may want to ask your attorney:

  • What can I expect during the pretrial motion stage?
  • Under what circumstances will a motion to exclude evidence be granted?
  • Does the prosecutor need to turn over all of its evidence? What happens if evidence isn't turned over?
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