Pretrial Motions: How They Affect Your Criminal Case

Motions are written or oral requests asking the judge to decide a legal or procedural issue. In a criminal case, motions can come up at different stages. Early in the case, the attorneys might ask the judge to decide issues involving bail, release conditions, or discovery. As trial approaches, the parties commonly file motions about evidence, where the trial should be held, or whether the case should proceed at all.

A judge decides pretrial motions. Some rulings deal mostly with courtroom procedure. Others can have a major impact on the outcome of the case. For example, if the judge excludes key evidence because police obtained it illegally, the prosecution might have a much weaker case. This kind of ruling can influence whether the prosecutor offers a better plea deal, dismisses charges, or goes forward to trial.

Common pretrial motions in criminal cases include motions to compel discovery, motions to suppress evidence, evidentiary motions, motions to dismiss, motions for a change of venue, and motions to sever trials.

What Is a Motion to Compel Discovery?

Discovery is the process of parties exchanging information before trial. In criminal cases, the prosecution generally must turn over evidence it plans to use at trial, as well as certain evidence that could help the defense. The defense also has certain discovery obligations, depending on the case and type of evidence involved.

If one side believes the other hasn't provided required information, it can file a motion to compel discovery. The motion asks the judge to order the other side to turn over specific documents, reports, recordings, witness information, or other evidence.

For example, the defense might ask the court to require the prosecution to provide police reports, body camera footage, lab results, or witness statements. The prosecution might argue that the requested material has already been provided, isn't discoverable, or is protected by a privilege. After hearing from both sides, the judge can order production of the evidence, set deadlines, limit disclosure, or deny the request.

What Is a Motion to Suppress Evidence?

A motion to suppress asks the judge to keep certain evidence out of trial, because it was obtained in violation of the defendant’s constitutional rights. These motions often involve the Fourth Amendment right against unreasonable searches and seizures, the Fifth Amendment right against compelled self-incrimination, or the Sixth Amendment right to counsel.

Common grounds for a suppression motion include:

• police stopped or searched the defendant without legal justification
• police searched a home, car, phone, or other property without a valid warrant or an exception to the warrant requirement
• officers questioned the defendant in custody without giving Miranda warnings, or
• officers continued questioning after the defendant invoked the right to remain silent or the right to an attorney.

If the judge agrees that a constitutional violation occurred, the usual remedy is to exclude the unlawfully obtained evidence from trial. Depending on how important the evidence is, suppression can significantly weaken the prosecution’s case.

What Are Motions in Limine? 

Motions in limine (LIM-uh-nee) are evidentiary motions that ask the judge to decide what evidence the jury may hear and how that evidence may be presented—in advance. These motions are help keep the trial focused on legally admissible evidence and prevent the jury from hearing evidence that they can't unhear.

Either side can ask the judge to exclude evidence that is irrelevant, unfairly prejudicial, unreliable, or not properly authenticated. For instance, the defense might challenge the qualifications of an expert witness, the reliability of a lab test, or the chain of custody for physical evidence. The prosecution might ask the judge to prevent the defense from introducing evidence that is legally improper or misleading.

In some situations, the judge might reserve (hold off) a ruling until trial, when the court can evaluate the evidence in context.

When Would the Defense Make a Motion to Dismiss?

A motion to dismiss asks the judge to throw out one or more charges or, in some cases, the entire criminal case. Unlike a motion to suppress, which focuses on excluding evidence, a motion to dismiss challenges whether the prosecution can continue with the charge.

Common reasons for a motion to dismiss include:

• the prosecution filed charges after the statute of limitations expired
• the defendant’s right to a speedy trial was violated
• the case violates the protection against double jeopardy
• the charging document is legally defective
• the alleged facts don’t amount to a crime, or
• the law the defendant is charged under is unconstitutional.

If the judge grants the motion, the dismissed charge might be gone permanently, or the prosecution might be allowed to correct the problem and refile.

What Prompts a Motion for a Change of Venue?

A motion for a change of venue asks the court to move the trial to a different location. Criminal cases are usually tried in the county or district where the alleged offense occurred. But in some cases, local publicity or community sentiment might make it difficult to seat an impartial jury.

Say a case has received intense, inflammatory media coverage. The defense might argue that many potential jurors have already formed opinions about the defendant’s guilt. If the judge finds that the defendant can't receive a fair trial in the original location, the court can move the trial to another county or district.

What Is a Motion for Severance?

When multiple defendants are charged in the same case, the court might hold one joint trial. Joint trials can be efficient, but they are not always fair to every defendant. A motion for severance asks the judge to separate the trials.

A defendant might seek severance when codefendants have conflicting defenses. For example, one defendant might blame another defendant for the crime. Severance might also be appropriate if evidence against one defendant would unfairly spill over and prejudice another defendant.

Judges don’t automatically grant severance. The party requesting it usually must show a strong reason why a joint trial would be unfair.

How Pretrial Motions Affect Plea Bargaining and Trial Strategy

Pretrial motions can change how both sides evaluate a case. If the defense wins a motion to suppress important evidence, the prosecutor might offer a more favorable plea agreement or dismiss charges. If the prosecution wins key evidentiary motions, the defense might reassess the risks of going to trial.

Even when a motion doesn’t end the case, it can clarify the issues for trial. The parties learn what evidence will be allowed, what arguments are off limits, and what legal theories are likely to matter most.

Talk to Your Defense Lawyer About Pretrial Motions

It's your defense lawyer's job to make tactical decisions about your case, including what motions to file. But motion practice shapes the defense strategy and parameters of the trial, so don't be afraid to ask what motions the lawyer will be filing and why. At some point, the results of the motions can affect whether you decide to take a plea deal or go to trial.