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posted on 10/15/16

One of my early mentors once remarked that if he could only change one thing in the law, he would replace the “guilty or not guilty” labels with “proved or not proved.” Most court cases are based on evidence as opposed to a subjective view of right and wrong, and criminal cases are no exception. Therefore, one of the best ways to prevail at trial is to limit the amount of evidence against the defendant, and pretrial motions often accomplish this goal.

While some pretrial motions are substantive and aim to reduce the admissible evidence against the defendant, others are procedural. William Gladstone, who is credited with the saying that “justice delayed is justice denied,” was obviously not a criminal defense attorney. Over time, witnesses relocate, memories fade, and other things transpire that make it more difficult for the prosecutor to obtain a conviction. Therefore, as a rule of thumb, delay is good for criminal defendants.

Substantive Motions

Motions to suppress are among the most common evidentiary motions. Generally, they are based on the exclusionary rule, which states that, in most cases, illegally-obtained evidence cannot be used during trial. A lawyer can file a motion to suppress:

  • The Stop: In most cases, officers must have specific articulable facts before they stop individuals on the street or pull over vehicles on the road. Typically, if there was no reasonable suspicion, the stop was illegal.
  • The Arrest: Officers must generally have probable cause to arrest people. If there was insufficient evidence, anything that occurs subsequently, including any evidence that the officers obtain, cannot be used at trial.
  • Physical Evidence: If there was no lawful arrest, or if none of the other exceptions are applicable, officers must have valid search warrants before they can enter a business or dwelling and seize items they believe to be evidence.
  • Lineup: Especially if there are few leads, investigators sometimes resort to tricks during photographic and live lineups that induce witnesses to select, or deselect, a certain person or persons.
  • Statements: Roughly the same principle applies to the defendant’s oral or written statements. If defendants are not properly and timely advised of their rights, any such statement is inadmissible. “Statements” includes non-verbal communication, like BAC breath tests.

Motions regarding certain questions of law, such as Brady motions compelling the prosecutor to turn over any exculpatory evidence or double jeopardy pleas, are also argued during this phase.

Procedural Motions

Trials can be delayed, but the defendants must have a legitimate legal basis to ask for such delays. Sometimes, there is a mix of substance and procedure; motions to set or reduce bond are good examples. Other motions in this realm are purely procedural, because in criminal law, a procedural irregularity can be as good as a substantive defense.

  • Severance: If co-conspirators or co-actors are to be tried together, an attorney can often ask for separate trials to reduce juror prejudice.
  • Competency: If the defendants cannot comprehend the nature of the proceedings and charges against them, often because they are not taking the proper medication, the proceedings must be suspended until the defendants demonstrate such understanding.
  • Continuance: Rules vary from court to court, but most courts will delay trials for good cause shown.

Other motions in this category include motions to transfer venue, conduct discovery, and substitute the trial judge.

Rely on Experienced Attorneys

The battle is often won or lost before the first shot is fired. For a confidential consultation with an experienced criminal defense lawyer in Schaumburg, contact Glasgow & Olsson. We routinely handle matters throughout Chicagoland.

(image courtesy of P.Lameiro)