ANATOMY OF A CRIMINAL CASE: PRE-TRIAL MOTION WORK

One of the things I sometimes hear from clients who are frustrated with their options is “well can’t you file some motions!?” The answer is…yes! But only if there is a motion to be filed.

What is a motion, generally? A motion is a request from one of the parties for some kind of relief from the court. The reason it is called a motion is because you are moving the court, another way of saying you are asking the court, to do something.

There are quite a few types of motions that can be filed depending on the circumstances of the case, but there are several that are far more commonly filed by defendants in criminal cases. In this entry, I will  provide an overview of some of these more common types of motions.

• Penal Code 995 motion

A motion under Penal Code section 995 is a motion brought after the preliminary hearing asking the court to dismiss one or more counts on the basis that the prosecution failed to present sufficient evidence as to that count at the preliminary hearing. Importantly, it is based only on what was presented at the preliminary hearing, no additional evidence is presented at a 995, only legal argument. The standard the defense must meet to be successful on a 995 is a difficult one. If there is any evidence from which a rational trier of fact could draw an inference of guilt, the 995 will be denied. This is almost a mirror image of the standard a jury employs at trial, where they are instructed if there is any reasonable inference that points away from guilt, they must acquit. That is not to say that these motions cannot be successful, they can. However, it is not an opportunity for the court to dismiss counts that are “weak” or that a jury is likely to acquit on, but more often used to eliminate counts that were overcharged to begin with or where the prosecution simply made a mistake and failed to prove up some element of a count, such as the value of a loss, during the preliminary hearing.

• Penal Code 1538.5 motion

A motion under Penal Code section 1538.5, often simply referred to as a 1538 for short, is a motion that asks to court to “suppress,” meaning preclude the prosecution from using, evidence obtained in a way that violates the State or Federal Constitutions prohibitions on unreasonable searches and seizures. Common examples of this could be a car stop or pedestrian detention made by an officer who did not have reasonable suspicion that a crime was being committed, a detention that was initially lawful being unduly prolonged or a search of a person, home, car, or person’s belongings without a warrant and without consent or probable cause to search.

Unlike a 995, a 1538 is almost always accompanied by an evidentiary hearing at which the officer or officers will testify as to what they did and why they did it. The motion is decided by a judge who will both decide what facts they believe have been established by the evidence and how the law applies to them.

If the defense is successful, the prosecution will not be allowed to present any of the illegally obtained evidence. Additionally, if the illegally obtained evidence led directly to additional evidence that would not have been discovered but for the illegality, that evidence may also be suppressed under the “fruit of the poisonous tree doctrine.”

• Formal Discovery motion

Discovery in criminal cases is governed by Penal Code section 1054. The system of discovery imagined hopes that the prosecution and defense will handle the vast majority of discovery compliance informally. This means that the prosecution unilaterally provides items that the defense is entitled to and provides additional items that the defense requests through informal discovery requests.

Less frequently, the defense requests something from the prosecution that the prosecution either does not believe they are required to provide or that they are simply taking too long to provide. When this happens the Penal Code provides that if the defense has made an informal request that has not been fulfilled after 15 days then it may formally move the court to order the prosecution to provide the contested items of discovery.

It is important to note that each of these kinds of motions is generally filed in advance of, sometimes well in advance of, the trial date. Most motions that relate to what evidence will and will not be admissible at a trial (with the notable exception of a suppression motion made under Penal Code 1538.5) are only heard once you have been assigned to a courtroom for trial as these motions will be heard by the same judge who will hear the trial. I will talk about these motions, known as in limine or 402 motions in a future entry in this series.