Pretrial Motions

Question 1

Enumerate the Pretrial Motions

Answer 1

1. Motion to Dismiss
2. Motion to Supress Evidence, Confession, or Admission
3. Motion for Continuance
4. Motion to Perpetuate Testimony
5. Motion to Change Venue
6. Motion to Disqualify Judge
7. Motion to Protect Identity of Sexual Assault Victim
8. Motion to Expedite

Question 2

What are the general requirements for motions?

Answer 2

1. In Writing
2. State grounds for motion

Question 3

Motion to Dimiss

Answer 3

• A motion to dimiss raises legal defenses.
• It must generally be filed at or before arraignment; however, the following defenses may be raised at any time
  
  • Double Jeopardy
  • Immunity
  • Pardon
  • No prima facie case
• Except for fundamaental grounds or jurisdictional objections, defenses not raied are waived.
• If defenant alleges that no facts are in dispute, he must recite and swear to the facts
  
  • The state may then reply with a traverse denying them.
  • If a charge is dimissed, the state may refile it.

Question 4

Motion to Supress Evidence, Confession, or Admission

Answer 4

• This motion must normally be filed before trial, and a hearing may be held at which both sides may present evidence.
• The motion must state the particular evidence to be suppresed, reasons for suppression, and a statement of facts on which it is based.
• There are five grounds to suppress illegally obtained evidence:
  
  1. The evidence was illegally seized without a warrant
  2. The warrant is insufficient on its face
  3. The property seized was not described in the warrant
  4. The warrant was obtained without probable cause
  5. The warrant was illegally executed

Question 5

Motion to Suppress Statements

Answer 5

1. Suppression of statements for violation of defendant’s Miranda rights.
2. Judge can sua sponte raise this motion

Question 6

Motion to Change Venue

Answer 6

• Either side may move for a change of venue, if, for any reason other than a complaint about the judge, the defendant cannot get an impartial trial in the county where the case is pending.
• Motion for change of venue must be made at least 10 days before trial, unless good cause is shown for the delay.
  
  • In writing
  • Accompanied by a certificate of good faith signed by the moving party’s counsel and affidavits of at least wo other persons setting out the factual basis for the motion.
• If motion is granted, the moving defendant’s trial will be transferred to any other convenient county where a fair trial can be held.

Question 7

Motion to Disqualify Judge

Answer 7

A motion to disqualify a judge alleges that the judge is:

1. Prejudiecd for or against a party;
2. Related within the third degree to a defendant or lawyer in the case or to any judge who participated as a lower court judge in the case; or
3. A material witness in the case.

• Motion must be in writing, specifically allege the facts and reasons, be sworn to by the party under oath or by affidavit, and be accompanied by a separate statement of good faith by counsel.
• It must be made in a reasonable time not to exceed 10 days after discovery of the facts constituting the grounds.
• If the motion is legally sufficient on its face, the first judge disqualifies herself automatically.
• If a defendant seeks to disqualify a second judge as prejudiced, that judge is not automatically disqualified unless he admits the prejudice.

Question 8

Motions Relating to Incompetence to Proceed

Answer 8

• Incompetence to proceed applies to all material stages of the proceedings, and the accused: cannot waive.
• Applies when defendant lacks the ability to rationally assist counsel or understand the proceedings.
• If defendant is found to be incompetent to proceed, criminal case stops and may be civilly committed.

Question 9

Insanity as a Defense

Answer 9

Insanity is an affirmative defense that the defendant has the burden of proving by clear and convincing evidence.

• Defendant must notify the court within 15 days after arraignment or filing a written not guilty plea of his intention to rely on an insanity defense and must provide a statement of the nature of the insanity and a list of witnesses whom he expexts will prove his insanity.
• The court must order defendant examined.
  
  • If defenant is acquitted by reason of insanity, the court may order commitment.
  • The court retains continuing jurisdiction over committed defendants.