Criminal Law

Getting Ready for a Criminal Trial: Pretrial Motions

A pretrial hearing takes place after a defendant has a preliminary hearing. A preliminary hearing determines whether there is enough evidence against the defendant to have a trial. The prosecution and the defense use the pretrial hearing to file motions before a judge. The pretrial phase of a criminal case, known as motion practice, happens mainly on paper.

Pretrial Motions

There are a wide variety of motions that may be made during the pretrial stage. Some common pretrial motions include the parties asking the court to:

  • Exclude evidence
  • Grant access to evidence in the possession of the prosecution
  • Compel or exclude testimony from certain people
  • Exclude the defendant's statements or confession
  • Require the opposing party to release evidence
  • Dismiss the case
  • Relocate the trial

Purpose of Pre-Trial Motions

Pretrial motions are made by the prosecution and defense attorney in an effort to set boundaries for trial. The acceptable use of evidence, legal arguments and witnesses at trial are based on what pretrial motions are made, allowed and denied. If the case ends with a plea bargain or is dismissed, there is no need for pretrial motions. Two of the most common pretrial motions are suppression motions and motions to compel.

Suppression Motions

The suppression motion is used most. If evidence has been gathered illegally, an attorney may make a motion asking the judge to prevent the use of that evidence at trial. If a confession or other statement isn't properly taken by the police, an attorney may ask the judge to prevent the statement from being used at trial.

Motions to Compel

The District Attorney's office has a duty to turn over all evidence it obtains so the defendant can properly prepare for trial. However, many times all of the evidence isn't turned over. This is when a defense attorney can use a motion to compel to get all of the evidence.

A motion to compel asks the judge to force the District Attorney to do his job properly. For example, if a case involves issues of police brutality, an attorney may make a motion to compel a police agency to turn over copies of prior complaints against officers. The complaints may be used to show the officers' violent character.

Questions for Your Attorney

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