Motions

There are usually nine categories of Motions in civil and criminal proceedings as well as any prior hearings to a trial. They are termed as follows: Motion to dismiss, Motion to compel, Motion for summary judgment, Motion to set aside judgment, Motion in limine, Motion for new trial, Motion for directed verdict, Motion for judgment (not withstanding verdict) and Motion for Nolle Prosequi. However, there are many sub-categories to these parent Motions that come up during all phases of a trial that will be explained in part below.

As was also discussed on the pre-trial hearings page of this Website, Motions are technical maneuvers to convey a request used by both the prosecuting entity and defense before a judge for consideration with the anticipation of receiving a positive outcome of a limited, disputed matter during a criminal proceeding. A Motion can be made in writing or verbally and can resolve many important issues before a trial begins. Motions can vary in importance from any matter such as a simple change of a trial date or a brief delay of trial, to a Motion to dismiss all charges against a defendant. Motions can be requested from a judge before, throughout, or after a trial by both the prosecutorial body and the defense, although that capacity is regulated by court rules which may differ from one place to another.

Defense counsel or a prosecutor requesting a Motion is the moving party, or movant. The contrary party opposing the Motion is identified as the nonmoving party or nonmovant. If a movant verbally requests a Motion in open court it will be summarily granted or orally denied by the judge.

In the pre-trial phase of a criminal case, a defense attorney may choose to file Motions that he believes may significantly modify charges which his client is facing or he may try to have the charges against the client terminated through a Motion to dismiss, which requests a judge to dismiss a case on the basis of various apparent valid reasons which include a dismissal based on an insufficient criminal complaint against his client.

An insufficient criminal complaint against a defendant might be dismissed for the following reasons, to name a few:

Unreasonable searches and seizures by law enforcement agencies protect citizens under The Fourth Amendment to the United States Constitution. This clearly states that without securing a properly executed warrant, police cannot enter your dwelling, vehicle or place of business, perform a search and then arrest you based on their findings. They also may not set up surveillance equipment in the hopes that something will be said that might incriminate you or selected others, without securing a search warrant first. They must be able to demonstrate to a judge that there is probable cause that a crime has already been committed, or will occur based on evidence legally obtained within their possession. Offenses that are exposed by an illegal search as well as any articles taken without judicial endorsement would be considered null and void and non-admissible as evidence to be presented in court. If the defense can convince a judge that this is the case, the possibility of gaining a dismissal is almost assured.

A Motion to Dismiss based on a violation of the expectation of privacy issue would be honored in most cases.

Lack of Sufficient Evidence

The government and state prosecutors will not normally pursue cases they don’t believe they can win even if there is the presence of unlawful activity. They are more concerned with taking on cases where a high chance of a guilty verdict will be returned. After a crime has been committed and a suspect is arrested, evidence obtained by law enforcement is supplied to the prosecutorial body. If the evidence is compelling (a confession, DNA evidence, or fingerprints, etc.), the prosecution will move forward. But if the evidence is weak (unreliable witnesses, conflicting testimony, etc.) they may decide not to pursue the case. The optimum scenario against a suspect would be if the prosecution believes they have retained evidence that would convict a suspect beyond a reasonable doubt. If a prosecutor decides to move forward with a case that contains weak evidence a defense attorney may propose a Motion to Dismiss based on this premise leaving the decision up to the judge to determine, deciding whether to grant or deny the request.

Miranda Rights Violation

Miranda rights stem from the Fifth and Sixth Amendments to the United States Constitution, which involve the right for an individual that’s about to be placed into custody the right to remain silent, not incriminating themselves, and the right to secure representation to assist in any forthcoming charges that will be brought against them. A suspect must also be notified that if they don’t have sufficient financial resources to hire an attorney, one will be appointed for them at no cost. Before a suspect is placed into a custodial position, law enforcement has no obligation to read these rights to them if the suspect decides to speak of their own free will. Spontaneous statements made during the apprehension of a suspect as well as any evidence found due to those statements before a Miranda ruling is provided are usually admissible in court. Once a suspect chooses to remain silent or requests representation the arresting officers are required to cease interrogation.

If a defense attorney can prove to the court that his client’s Miranda rights were violated, any evidence that was found by the arresting officers as a result of the suspect’s proclamations can be excluded from being brought into the consideration of a jury or the court. This is known as “fruit of the poisonous tree”. Additionally counsel can propose a Motion to Dismiss and have an exceptional chance of having it satisfied.

Dismissal With Prejudice

This reason for a dismissal is not uncommon in a criminal proceeding. This decision is made by the judge or a panel of judges when it is believed that the prosecutorial body doesn’t have sufficient evidence to conclude the case with a conviction. Even if the judge suspects that the defendant is guilty of the charges against them, he may dismiss the case with prejudice. Doing so allows the prosecution to refile the case if more persuasive evidence is uncovered or further witnesses come forward at a later date.