Written by attorney Edward D. Dowling IV

Pre Trial motions in a Criminal Case

If the Defendant is charged with a felony and if he was Indicted by the Grand Jury ( see previous article " The Grand Jury “) the Defendant’s attorney should consider making a " Motion to Inspect the Minutes of the Presentment of the Case to the Grand Jury “ to see if the Prosecutor exceeded his authority or did any improper acts in presenting the evidence to the extent that a " Motion to Dismiss the Indictment " should be made.

An Indictment can also be dismissed on a " Motion to Dismiss for Facial Insufficieny “. This means that there is some defect on the document itself ( on its’ face ) such as there is no Supporting Deposition by a police officer or other person containing Non Hearsay statements tending to establish the commission of a crime by the defendant. As with most of the rest of the motions being discussed here, this motion applies to other accusatory instruments ( see previous article " Common Accusatory Instruments “).

Another common motion ( almost always made in a felony case or serious misdemeanor case where defense counsel is not sure there is going to be a favorable plea bargain ) is an " Omnibus Motion ". An Omnibus Motion is a Motion, made within 45 days after Arraignment ( see previous article on Arraignment ), which is really many smaller motions all combined into one Omnibus Motion.

There are many of these motions ( too many to discuss details of each motion in this article ) that can be and should be made but Defense Counsel is advised only to make those motions that are relevant to the facts of the particular case. Many of these motions are made with the request that if the Judge cannot decide the motion on the papers alone, then Defense Counsel requests a pre trial hearing to determine whether to grant or deny the motion.

Pre trial hearings are usually named after the defendant in a case . Usually most Judges will grant the request for a Pre Trial hearing if they cannot deny or grant the motion on the motion papers alone.

Some of the more common pretrial motions in an Omnibus Motion ( or separate motion by itself ) are as follows :

1: Demand for Discovery Pursuant to Criminal Procedure Law ( CPL) Article 240

The usual items of discovery that the defendant wishes to obtain are such things as :

  • copies of any Statements( sworn or unsworn ) made by the defendant, especially to law enforcement personnel.

  • copies of any photographs, video tapes, audio tapes, cds, dvds, maps or drawings, or any other means of preserving evidence , documentation or recordings relevant to the case.

  • copies of any statements of witnesses( expert or non expert ).

  • copies of any reports by experts and non experts , test results ( including the method and procedures used in performing the tests ) and other scientific or other evidence relevant to the case.

There are other items listed in CPL 240 but the above is sufficient for purposes of understanding what the main items the defense attorney wants to obtain in discovery.

2: Motions to Suppress ( exclude) Evidence

Motions to Suppress evidence are usually made after defense counsel obtained discovery from the Prosecutor ( this way defense counsel knows what evidence the prosecutor has, thus what evidence to try to get excluded from use at trial ).

Motions to suppress can be to suppress physical, documentary evidence as well as to preclude a witness from testifying.

3: Motions for a Pre Trial Hearing on Precluding Eye Witness Testimony

This is usually in a case where the defendant claims the eyewitness is mistaken in that the witness mistakes the defendant for someone else ( the real perpetrator of the crime ) or in a case in which defendant casts doubt on the ability of the witness to see the defendant under the conditions of the crime ( lighting conditions, distance from the person alleged to have committed the crime, poor eyesight, failure to wear eyeglasses or contact lenses, or only caught a quick glimpse of the person, etc.)

4: Motions to Prevent the Prosecutor from using evidence of prior convictions, arrests or prior bad acts of the defendant.

This motion is especially used in a case in which the defendant has a prior record but his prior acts may have been a long time ago and thus mention of them may be too prejudicial against the defendant but are not relevant to the crime charged.

5: Motions to Dismiss the Case in the Interests of Justice.

This motion is generally made when there are circumstances in which, even though the defendant may have committed the crime, that the interests of Justice dictate that the defendant not be punished. An example would be an elderly or other person with no criminal record, takes food from a supermarket without paying for it to provide for themselves and their children when they are unemployed and/or disabled. Another example would be in a case where the defendant is an upstanding citizen and valuable member of the community in his 50′s or more and the crime committed was minor and many years ago in his youth. There are many other examples, but this should suffice to explain Motions in the interests of Justice.

There are many other Pre Trial Motions that could be made, however a full discussion of them is beyond the scope of this article.

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