A Lawyer’s Guide to Pre-Trial Motions

In criminal law, pre-trial motions can make or break the case for either the prosecution or the defense. This is why criminal defense attorneys must be well-versed in how to prepare, argue, and oppose them. Here we provide an overview of some of the top considerations for pre-trial motions in criminal practice.

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Understanding pre-trial motions

After the defendant has been arrested and pled “not guilty” at the arraignment, the pre-trial phase of the case begins. Before trial, either the prosecution or the defense can seek orders to guide the conduct of the trial with pre-trial motions. In some cases, these motions can determine whether the trial proceeds at all.

Pre-trial motions are a critical phase of the criminal case, where charges can be dismissed or key evidence banned from trial. Criminal attorneys should be well-versed in the most common types of pre-trial motions and how they affect trial strategy.

Another reason for the importance of pre-trial motions is preserving issues for appeal. A criminal conviction can be overturned by an appellate court if it finds the trial court wrongfully granted or denied a pre-trial motion.

Common types of pre-trial motions

The following are among the most common types of pre-trial motions.

Motion to dismiss

A motion to dismiss can seek dismissal of one or more charges, or even the entire case, against the defendant. These motions can be made on the basis of the prosecution not having sufficient evidence to bring the case to trial. Constitutional rights are often raised in these motions, such as the 4th Amendment right against unreasonable searches and seizures or the 5th Amendment right against unlawful interrogation.

Motion to suppress

A motion to suppress evidence is an attempt to keep certain testimony or other information from being introduced into evidence at trial. These motions often challenge the validity of search warrants, defendant statements made before the reading of Miranda rights, and other alleged violations of constitutional rights. These can be powerful motions, as the suppression of key testimony or other evidence for the prosecution can result in a pre-trial dismissal.

Motion for change of venue

A motion for change of venue is made to change the location of the trial. This motion is made on the grounds that the current venue would not provide a fair and impartial jury, often due to pretrial publicity. Predictably, these motions are common in high-profile and celebrity criminal cases.

Motion for discovery

Pre-trial motions for discovery are generally directed to the prosecution, seeking any information relevant to the defense of the case. Although the Brady rule requires prosecutors to disclose material, exculpatory information to the defense, it is often best to not rely on what the prosecution deems to be disclosable. These motions can seek information not normally disclosed, such as the names of additional witnesses, or the names of the officers or investigators who collected the prosecution’s evidence.

Other pre-trial motions

Pre-trial motions can cover a wide array of issues, and you should familiarize yourself with the specific grounds for these motions in your jurisdiction. Motions can be made for various forms of court relief, such as severing the trials of co-defendants, bail modification, or forcing the prosecution to expand on a vague indictment (known in many states as a motion for a bill of particulars).

Once the trial ends you can file a post-trial motion, or have a post-trial motion filed against you. Learn more here: A Guide to Post-Trial Motions.

The role of pre-trial motions in the legal process

Pre-trial motions can affect the outcome of a criminal case in many ways. For a motion to dismiss or a motion to suppress key evidence for the prosecution, the court’s granting of the motion can end the case. Other motions, while not dispositive, may require the attorneys to adjust their strategy or change which evidence they focus on.

It is also important to note that pre-trial motions have impacts beyond the actual trial. For example, a motion that is granted or denied may increase the chances for a plea deal prior to trial. In addition, the prosecution and defense may even discuss pre-trial motions, before going to the court, then ask the court to accept their agreement by entering an appropriate order.

Preparing your pre-trial motion

Depending on your jurisdiction, many pre-trial motions can be made either (1) orally in court or (2) in written form. Some jurisdictions may expressly require written motions for the most consequential motions, such as motions to dismiss or motions to suppress. Check on the rules of your particular jurisdiction and consider whether a written motion will be more persuasive.

Regardless of whether the pre-trial motion is written or oral, you still need to make a persuasive argument to the court. This will mean crafting that argument beforehand. The process will naturally entail compiling the necessary research, while applying that research to the facts of your case.

Your written pre-trial motion will also need to be properly formatted and structured according to the rules of your court. In addition to legal briefs, written submissions can also include affidavits, exhibits, and other supporting documents.

Filing, serving, and arguing your pre-trial motion

With the above-noted caveat that some pre-trial motions may be made orally, a written motion will need to be filed with the court and served on the opposing side. For both filing and service, follow the applicable rules and procedures of your court. Electronic filing is the norm for federal courts, and many state courts have eFiling options.

At the hearing on your pre-trial motion, be ready to present compelling arguments (learn more about motion hearings here). You will likely know your opponent’s counterarguments to some extent, so also be prepared to respond to those. Nonetheless, prepare for any new arguments and, when in doubt, focus on the basic fairness of the remedy you are seeking.

After the court’s decision

Once the court issues its decision on the pre-trial motion, it is time to deal with the aftermath. If the court dismisses the case or grants some other motion that results in a dismissal-such as a motion to suppress evidence-then the next step will be considering an appeal.

If the motion is denied or a non-dispositive motion is granted, then the trial is still proceeding and you will need to adjust your strategy accordingly. For example, you may be preparing for a new court venue, the dismissal of certain charges, or testimony from a key witness being barred at trial. Keep in mind that you will want to preserve an issue from a pre-trial motion for appeal in case the ultimate verdict does not go your way.

Criminal attorneys must develop their expertise in pre-trial motions. Not only is this the baseline for competence as an attorney. It will also allow your legal skills and strategy to shine before the trial starts.

Final thoughts on pre-trial motions

In conclusion, mastering pre-trial motions is crucial for any criminal defense attorney. These motions can significantly impact a case, from securing favorable rulings before trial to laying the groundwork for appeals. By strategically using different motions, attorneys can protect their clients’ rights and improve their chances of a positive outcome.

Whether through written submissions or oral arguments, the ability to effectively present pre-trial motions is a key skill. Staying adept in these procedures ensures defense attorneys can navigate the legal system with confidence and precision.

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We published this blog post in May 2024. Last updated: July 11, 2024.

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