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What are Pretrial Motions in The Federal Criminal Law System?

The term "motion" refers to a written legal argument. More technically, a motion is a pleading containing the legal argument that is filed with the court. Either the AUSA or your federal criminal defense attorney can file a motion. Broadly speaking, a motion requests the judge assigned to your case to make a ruling or decision that is important to their case.

What Procedures Apply to Federal Criminal Pretrial Motions?

Pretrial motions in the federal criminal law system are generally in line with pretrial motions in the state court system. Rule 47 of the Federal Criminal Procedure addresses motions and supporting affidavits. The Rule provides that when a litigant requires or requests an order from the court, the request must be made by motion. In a criminal case, the reason for this section of the Rule is to assure that the litigants are afforded "due process." In this context, due process means "notice and an opportunity to be heard."

Rule 47 also provides that unless the motion is made during a trial or as part of a pretrial hearing, a motion must be in writing. The motion must contain a cognizable legal argument and include the relief (order) requested. The opposing party is entitled to a minimum of 7 days notice. When appropriate, the motion may be supported by affidavits, but the affidavit only requires 1-day notice.

What Are the Most Common Pretrial Motions in a Federal Criminal Case?

The most common pretrial motion in a federal criminal case will address issues of search and seizure in the recovery of the evidence the government intends to offer. This is called a motion to suppress the evidence and is based upon a problem in how the government obtained the evidence they wish to use against you in their criminal case.

Other common motions include a motion to dismiss the charge for lack of admissible evidence; to a change of venue; to compel the production of evidence previously withheld by the government; to suppress testimony given; to suppress statements made during pre-charging interviews of the defendant, including the exit interview after a polygraph; and a motion claiming a violation of the defendant's speedy trial rights, double jeopardy, or a violation of the statute of limitations. Finally, a common pretrial motion is to suppress prior convictions or to prevent impeachment of the defendant by prior bad acts.

The Special Case of Electronic Surveillance and Wire Taps

Another common motion in the federal court is for electronic surveillance. In such a motion, the defendant will challenge the electronic surveillance order and the affidavit used to get the order. In such a motion, the defendant may claim that there is insufficient evidence and/or that the government failed to comply with the statutory requirement for obtaining an electronic surveillance order. For instance, it is necessary for the government to establish an exhaustion of all other investigative avenues before it can seek to obtain an electronic surveillance, whether the surveillance is via a phone tap or a bug in a particular location. This is often the focus of the defendant's motions to suppress the results of electronic surveillance which frequently constitutes the bulk of the government's case.

Another issue with electronic surveillance is with the tapes. The federal criminal defense attorney may challenge the accuracy of the transcripts produced by the government. The attorney may also seek to have embarrassing or offensive material excluded from the search warrant from the tapes that will be played in front of the jury. For instance, should one of the defendants choose to use derogatory terms regarding racial or ethnic groups in his common conversation you will often see an attempt to suppress that portion of the recording or to have that portion redacted. The argument is that if the derogatory information is not suppressed the defendant may find himself in a position where several jurors find they have little sympathy. The resolution of these issues is generally performed by the trial judge and it is a balancing act between excluding valuable evidence and avoiding the opportunity for the jury to be impacted by the defendant's language.

Another issue that comes up in the context of electronic surveillance is the quality of the tape recordings and the amount of information that is unintelligible. It is not uncommon to have 20% or 30% of a tape recording be unintelligible. This conclusion is often supported by the transcript providers themselves and this is something that defense attorneys often make great use of in attempt to exclude significant portions of the transcripts.

In a federal criminal case, the transcript from the electronic surveillance is generally provided to the jury. However, in such instances, the jury will be instructed that it is the actual tape not the transcript that is the evidence. The problem is that people tend to hear what they see on the written page. If the transcript says something and it is close to what the tape sounds like, the jury tends to interpret that as an accurate transcription. This may form another basis for suppression of this evidence.

Must Pretrial Motions in a Federal Criminal Case be Filed Before Trial?

Although some of these issues can be raised at the trial as the evidence is going in, most federal judges prefer these issues be resolved by a pretrial motion instead of a motion made during the trial. As indicated above, some motions are required to be filed prior to trial. However, there are exceptions, such as a motion for directed verdict (described elsewhere in these materials), which can only be made during trial. Also, some motions are based on things that happen during trial. In these situations, the motions cannot be made before the trial has begun.

Whether the existence or timing of a motion is addressed and required by rule or statute, it is necessary and advisable for a defense attorney to evaluate the case presented by the government and file as many written motions as possible before the trial starts. The judge may still reserve the ultimate resolution of those issues until the trial. But if you filed a motion in advance, you are likely in better footing with the judge than had you not done so.

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