A pretrial motion is a document asking that a judge take some action.

A pretrial motion should say what facts support it.

A pretrial motion may, in some districts, say what law supports it, but in some districts the local rules require the law supporting a motion to be in a separate document, called a brief in support of the motion.

Many lawyers, in that special way they have (especially if they call themselves "attorney" or "esquire"), lard their motions with lots of "said court" and "wherefore, premises considered" language, but a motion can be as simple as "Dear Judge: please do x because y. Thank you." In fact, many judges prefer motions in plain English to motions in lawyer speak.

Attached to each pretrial motion should be an order for the judge to sign if he decides to do what we have asked him to do.

A few specific motions:

Motion for Discovery

Rule 16 of the Federal Rules of Criminal Procedure requires the government, on the defendant's request, to provide certain information to the defendant. A motion is not required to trigger Rule 16; a written request to the government should be enough. If the government does not comply with its obligations under Rule 16, then a motion may be filed to compel discovery.

Brady Motion

The United States Constitution, as interpreted in Brady v. Maryland and the cases that followed it, requires the government to provide exculpatory evidence to the defendant. A motion is not required to trigger this requirement, but it is often a good idea to remind the government of its obligations in writing, and to have the judge do so as well. It is also a good idea to educate the government about the extent of its Brady obligation, calling to the government's attention the specific things (for example, factors affecting the credibility of informants) that the prosecutor should look into and reveal to the defense.

Motion to Suppress Evidence

Sometimes the police break the law. If police law violations (for example, illegal searches or illegal interrogations) led to the discovery of evidence, that evidence should generally be suppressed, or ruled inadmissible. This is often our only defense in a narcotics case. See Four Defenses.

Motions to suppress are often based on the violation of one of the following amendments to the United States Constitution:

• Fourth Amendment. For example, illegal searches and illegal arrests.
• Fifth Amendment. Violation of defendant's right to remain silent.
• Sixth Amendment. Violation of right to counsel.

Motions to suppress can also be based on the violation of other amendments (I once argued that six tons of cocaine should be suppressed because the government compelled my client to work sailing the freighter loaded with cocaine to Galveston, in violation of the Thirteenth Amendment, which abolished slavery) and on the violation of non-constitutional law.

Motions to suppress evidence sometimes require the presentation of evidence. A judge will often have a hearing at which the two sides present evidence to help her decide whether the evidence should be suppressed.

Motion for Lawyer to Conduct Voir Dire

Most federal judges do not allow the lawyers in a case to question potential jurors during the jury selection process. The judges feel that they can discover enough information about the potential jurors to allow the lawyers to make meaningful decisions on who should and who should not be on the jury. A good lawyer can pick a much better jury when he has some time -- even half an hour -- to talk with the jury panel about the issues in his case. The jurors appreciate it more, too. If there is any chance that the judge will allow the defense lawyer to speak with the jurors during voir dire, the defense lawyer might consider asking for the opportunity.

--

Mark.

This page is a work in progress. If you'd like to discuss pretrial motions in federal criminal court, please contact me