Whether you are in federal or state court, well-crafted pretrial motions are essential to a successful defense. Pretrial motions are requests by way of formal motion, which may ask for the court to compel the prosecutor to turn over evidence, to dismiss the indictment or certain counts, to exclude or limit certain evidence, or to prevent the prosecutor from making certain arguments to the jury, among other things. These types of motions may also raise discovery violations; challenge the admission of evidence from searches, electronic surveillance, identifications, and custodial interrogation; and/or challenge the sufficiency of grand jury proceedings. Discovery motions in particular are critical because often times the prosecution does not turn over a complete set of discovery or evidence favorable to the defense. Defense counsel should set forth its detailed discovery demands in writing to the prosecution both early in the proceedings and later, as discovery is received. As the discovery is reviewed, counsel may uncover items missing or referred to in documents that lead him to believe that there are other reports that should be turned over as well. Written discovery demands establish specific requests that put the prosecutor on notice and can later establish discovery violations for failure to disclose those requested items. Defense counsel can also submit Freedom of Information Requests to certain agencies that may be compelled to turn over reports that may not otherwise be obtainable. For instance, Child Protective Services can be compelled under certain circumstances to turn over reports of interviews or psychological evaluations in their files that the prosecutor may not possess or request. Such information can be highly probative of credibility or inconsistent statements about the alleged conduct.

Pretrial motions to exclude or limit certain evidence are known as motions to suppress. A motion to suppress can ask for the exclusion of a range of evidence, including physical evidence seized pursuant to a search warrant, consent searches, or warrantless searches; custodial statements from the defendant, with or without Miranda warnings given; recorded communications, whether by an informant or cooperator, or by court-authorized wiretap; and searches of electronic devices such as cellphones and computers. If the court grants a hearing on any of these issues, the prosecutor must present witnesses under oath to establish that the items were lawfully seized or recorded. This is the defense’s opportunity to learn what potential witnesses may testify to at trial, and to cross-examine those witnesses prior to trial in an attempt to establish a violation substantial enough for the court to exclude that evidence.

Pretrial motions to dismiss the entire indictment or specific counts are based upon the sufficiency of evidence presented – and/or legal instructions given – to the grand jury. While difficult to win, successful motions to dismiss can force the prosecution to either dismiss the case or counts, or re-present the case to another grand jury with additional evidence or legal instructions.

A successful defense starts with a thorough review of the facts and discovery that enables the attorney to research and draft effective, case-specific motions tailored to uncover weaknesses in the prosecutor’s case and establish defenses to the charges. Boilerplate motions using form, canned briefs are ineffective and fail to alert the court to specific important issues that could affect the course of the proceedings.

Stahl Gasiorowski Criminal Defense Lawyers aggressively defend individuals charged with complex federal and state crimes. Founder Robert G. Stahl is recognized as one of the top criminal defense attorneys in the NY/NJ area for his skills, knowledge and success. To contact the firm, call 908.301.9001 for the NJ office and 212.755.3300 for the NYC office, or email Mr. Stahl at rstahl@stahlesq.com.