When most people think of a trial the first thing that comes to mind is a courtroom scene with a judge and jury. They think of witnesses, evidence, and verdicts with attorneys battling it out for a conviction or acquittal.

The truth is, a trial begins months before it ever sees a courtroom – if it ever sees a courtroom.

Quite often, cases are decided before the defendant goes before a jury. Defense attorneys and prosecutors have the ability to file many different pre-trial motions that can shape or end court proceedings. They can exclude certain evidence, including witnesses, and have charges or even cases dismissed. 

It is not uncommon for these hearings and motions to shape the case and even determine the outcome.

What is the Purpose of Pre-Trial Motions?

Pre-trial motions usually take place after the arraignment and discovery are provided to the defense. Not all trials will have pre-trial motions, but many do.

A pre-trial motion is a written request to the court that is usually in writing. It requests that the judge take some specific action regarding a criminal case. Sometimes the motion may be made orally, but that usually only happens during the trial.

A winning motion can shape a case and may affect many different areas including the charges that will be prosecuted, where the trial will take place, and what evidence can be used in the trial. When the motion is filed, the judge hears arguments presented by the defense and the prosecution, then he or she will make a decision. Sometimes an attorney may choose to not present oral arguments but instead have a judge decide the motion based on written submissions.

The purpose is to shape the case and ultimately to ensure the defendant has a fair trial.

What are the Most Common Pre-Trial Motions?

There are many different pre-trial motions that can be filed during the course of a criminal case. Some can have a substantial effect on the outcome such as a motion that prohibits the prosecution from using key evidence. Sometimes these motions can lead to dismissal of charges or acquittal because they remove the prosecutor’s evidence ad what they have left is not sufficient for proving the defendant’s guilt beyond a reasonable doubt.

Other times they can highlight weaknesses in the prosecution’s case, resulting in a better plea agreement for the defense.

Some of the more common pre-trial motions include:

Motion to Dismiss – The goal of the motion is to dismiss all or some of the charges against the defendant. There could be several bases for this motion, such as a violation of the defendant’s right to a speedy trial, lack of sufficient evidence, or the constitutionality of a statute that the charges are based on.

Motion to Suppress – The criminal defense attorney files this motion requesting that the judge suppress certain evidence against the defendant because it was not obtained legally. This could happen if the defendant was not read his or her Miranda warning prior to giving a statement or if the police did not get a search warrant before they obtained the evidence.

Motion to Change Venue – This is a request to change the trial’s location. Sometimes the publicity surrounding the case can make it difficult, if not impossible, for the defendant to have an impartial and fair jury in the community where the case is being tried. 

Discovery Motion – This motion requests that the judge order the prosecution to turn over evidence against the defendant that may help to prove they are innocent or that is required by law. If the prosecutor chooses to ignore the order, it could cause certain witnesses or evidence to be excluded from the trial. In rare cases, it could result in the dismissal of the case.

Motion to Disclose Identity of Informant – This is filed by the defense attorney and if granted, forces the prosecutor to disclose the identity of an informant. This could help the criminal defense attorney poke holes in the testimony, such as cast doubt on their motives for testifying or question the person’s credibility.

Motion to Modify Bail – The criminal defense attorney may file this motion requesting the judge to lower the amount of bail that is required in order for the defendant to be released from jail. On the other hand, if there are new developments in the case which increase the defendant’s flight risk, a prosecutor might file a motion requesting that the bail amount be increased or even revoked. This is typically done because the defendant has violated the terms of the bail that were set forth by the judge or because the prosecutor obtained new evidence, making a conviction very likely. 

What is the Purpose of Preliminary Hearings?

A preliminary hearing is held prior to a criminal trial. Essentially, it is a trial before “the” trial. 

Where the judge or the jury in the trial itself determines the defendant’s guilt, at the preliminary hearing the judge decides if there is even going to be a trial.  In other words, is there sufficient evidence to compel the defendant to stand trial? 

The “probable cause” legal standard is what the judge uses in the preliminary hearing. It helps him or her decide if the government has provided enough evidence to make the jury believe that a crime was indeed committed and that it was the defendant who committed that crime.

The “probable cause” legal standard means that the prosecution is logically based, whereas the “beyond a reasonable doubt” conviction standard means there is strong evidence that the defendant is guilty.

In a preliminary hearing, the judge listens to the prosecution’s arguments and then the defense’s arguments. The prosecution is allowed to call witnesses to provide testimony and may introduce physical evidence to show the judge that the case should proceed to trial. The defense typically cross-examines the prosecution’s witnesses. They will also call into question the prosecution’s evidence against the defendant in an effort to show the judge that the case against the defendant is not strong enough and the charges should be dismissed.

Preliminary hearings are not held in all criminal cases.

How are Criminal Charges Brought?

The criminal charges that are brought against the defendant are at the core of the trial, as the prosecutor must prove beyond a reasonable doubt that the defendant committed all of the elements that are part of the charge or charges. 

There are three ways that criminal charges are initiated against a Defendant:

Complaint – The prosecutor files a document called the “information” or the “complaint.” It gives the defense notice of the charges that the defendant is facing and may describe some specific actions that led to the charges. Most of the information related to the charges will be gleaned from the police investigation and reports.

Indictment – This is done through a grand jury. All states require this method for felonies, and it is required for federal felony prosecutions as per the Fifth Amendment. Once a prosecutor believes there is enough evidence for felony prosecution, he or she will present that evidence before a grand jury, which may also include the testimony of witnesses. Evidence that would likely not be admissible in court can be heard by the grand jury who will decide which charges named in the indictment can proceed because they are supported by probable cause.

Citation – This is the easiest way to bring a criminal charge. A police officer witnesses a person committing a minor crime such as littering, jaywalking, or speeding and writes a citation, or ticket. The crimes that can be charged in this manner are usually minor infractions and not anything that would garner prison time. The person who receives the citation does have the opportunity to contest it before a judge in court. They often are able to pay a fine and completely avoid going to court.

Pre-Trial Motion Procedure in New York

Under New York law, pre-trial motions are governed per Article 255 – New York Criminal Procedure Law.

255.20 Pre-trial motions; procedure

1. Unless it is otherwise stated in the law, all pre-trial motions must be filed within 45 days after arraignment and before the trial starts – or the court may set a timeframe at the time the defendant made the application but before the judgment is entered. It doesn’t matter if the defendant is represented by an attorney or if they decide to proceed pro se (without counsel). If the defendant does not have an attorney and has requested time to get an attorney or to have a public defender assigned to their case, the 45-day period will begin on the date that the attorney first appears on behalf of the defendant. Other exemptions may also apply.

2.  All pre-trial motions must be included in the same set of motion papers and must all be returnable on the same date. This includes all pre-trial motions that have supporting affidavits, exhibits, affirmations, and memoranda of law – if it is practicable. This may be changed if the defendant shows that having a single judge considering all of the pre-trial motions would be prejudicial to the defense. So, according to this subdivision, it would be impracticable for one motion providing the basis for making another motion to be in the same set of motion papers.

3. Notwithstanding the provisions of subdivisions 1 and 2 hereof, the court must entertain and decide on its merits, at any time before the end of the trial, any appropriate pre-trial motion based upon grounds of which the defendant could not, with due diligence, have been previously aware, or which, for other good cause, could not reasonably have been raised within the period specified in subdivision one of this section or included within the single set of motion papers as required by subdivision 2.  Any other pre-trial motion made after the 45-day period may be summarily denied, but the court, in the interest of justice, and for good cause shown, may, in its discretion, at any time before sentence, entertain and dispose of the motion on the merits.

4. Any pre-trial motion that is made either before or after the period as described in subdivision 1 has expired, may be referred by the court to a judicial hearing officer. This officer will consider it in the same manner as a court would. This discharge of responsibility gives the judicial hearing officer the same power as the judge of the court making the assignment. The only exception is that the judicial hearing officer will not decide the motion but will file a report with the court that described the findings of fact and conclusions of law. The rules of evidence are applicable at any hearing that is conducted by a judicial hearing officer. If testimony is taken, the transcript and all exhibits and copies will be filed with the report. The court will then determine the motion on the motion papers, affidavits, and other documents submitted by the parties to be the record of the hearing before the judicial hearing officer, and the judicial hearing officer`s report.

If you are facing a trial or if you’ve been arrested for a crime and believe a trial may be in your future, you need a knowledgeable, skilled criminal defense attorney on your side to help you through the process.

Call The Litvak Law firm today at (718) 989-2908 to schedule your free phone consultation and get the representation you need. Mr. Litvak has the experience and education to help ensure that you have the best possible outcome for your case. Don’t wait to see how it turns out, call and get the representation you deserve to ensure that your rights are protected.