Before a criminal trial begins, both the prosecution and defense have the opportunity to file pretrial motions. These pretrial motions can affect critical issues in the case, 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.
What Is a Pretrial Motion?
A motion of any kind is a written or spoken request for the trial judge to decide a legal issue. For example, when the defense wants to keep certain types of evidence out of court, they would make a motion to suppress or exclude the evidence. Normally, to have any chance of success, a motion must be backed up with legal authority—statutes, cases, and/or constitutional provisions that weigh in favor of granting the motion.
A pretrial motion is simply a motion that’s brought before the trial starts. Some pretrial motions must happen before trial because they’ll determine whether the charges can go forward or where the trial will be, for example. Some pretrial motions will simply minimize the need for interruptions mid-trial and will give both sides a pretty good idea of what the evidence will be before the trial starts. In this way, pretrial motions help the parties effectively prepare their case.
Types of Pretrial Motions in Criminal Cases
Issues heard in pretrial motions will go before the judge only, not the jury. 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).
Pretrial Motion to Suppress Evidence
With a motion to suppress (or exclude), an attorney asks the judge to exclude certain evidence or testimony from the trial. Typically, this request is based on the "exclusionary rule," which prohibits the prosecutor from introducing evidence that was illegally obtained. For instance, a defendant might argue a police officer acquired evidence in violation of the Fourth Amendment by conducting a search without a warrant. Another example is a motion to suppress a defendant’s incriminating statement or confession taken without a Miranda warning.
A judge who concludes that evidence or a statement was obtained in violation of the defendant’s constitutional rights will exclude it from the trial unless the government can establish that a legal exception to the exclusionary rule applies.
Pretrial Motion to Compel Production of Evidence or Testimony
In 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 might prove the defendant’s innocence. A defense attorney who has reason to believe the prosecution is withholding information can file a motion to compel asking the judge to force the prosecutor to hand over evidence.
Pretrial 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 jury.
Another reason for a motion for a change of venue is "improper" venue (meaning the crime didn’t occur in the court’s jurisdiction). Or the motion might be made “in the interests of justice,” which is a catch-all phrase used to argue that the venue should be changed due to travel costs, location of witnesses or evidence, or other reasons.
Pretrial Motion to Dismiss Criminal Charges or Case
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 might 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 can’t be used as a basis to convict. If a motion to dismiss is granted, this 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. (But depending on the state and the grounds on which the case is dismissed, a prosecutor might be able to refile the charges.)
Examples of Other Types of Pretrial Motions
There are several other kinds of pretrial motions that might be filed, depending on the case. Some examples include:
- Motion for joinder. When the defendant is charged in two separate cases—or if two people are charged separately for committing a crime together—the prosecutor might ask to have the cases joined so they can be tried as one case. Joinder is often favored because it saves the time and expense of having two trials.
- Motion for severance. When cases are joined, the defendant often asks that they be “severed” (separated). One of the reasons defendants bring motions to sever is that the evidence in one case is stronger or more damaging than in the other, which might make the jury more likely to convict on the weaker case. Or, the defendant might not want to be tried with a codefendant: If the jury will hear damaging evidence about the codefendant that could make the defendant look guilty by association, defense counsel might file a motion for severance.
- Motion to admit evidence. Sometimes, when an attorney anticipates an objection to evidence they want to introduce, they’ll ask the judge in advance to let the evidence in. For example, there’s a rule that says the prosecution can’t use evidence of the defendant’s past crimes to prove the charged offense, but the rule has many exceptions. A prosecutor who wants to introduce evidence of the defendant’s past crimes might bring a motion to admit the evidence because it meets an exception.
When Are Pretrial Motions Made?
The point at which an attorney will make a pretrial motion will vary from case to case. Court rules often dictate when a motion must be brought. The failure to file a motion by the due date in the rules could mean that the party can’t bring the motion at all.
Sometimes, strategy plays a part in the timing of a motion. Motions to suppress evidence are often raised fairly early because, if successful, they could result in the prosecutor dropping the charges. For example, in a drug possession case, if the drugs were found during an illegal search, a successful motion to suppress could leave the prosecution little to no evidence to present at trial. On the other hand, when it’s clear the case is going forward, attorneys might wait until closer to the trial date to bring certain motions.