Pre-Trial Motions

Question 1

Motion to Dismiss

Answer 1

• raises legal defenses
• generally, must be filed at or before arraignment
• except for fundamental grounds or jurisdictional objections, defenses not raised are waived

Question 2

Motion to Suppress Evidence, Confession or Admission

Answer 2

• filed before trial
• a hearing may be held at which both sides may present evidence
• motion must state the particular evidence to be suppressed, reasons for suppression, and a stmt of facts on which it is based

Question 3

Grounds to Suppress Illegally Obtained Evidence

Answer 3

1. the evidence was illegally seized without a warrant
2. the warrant is insufficient on its face
3. the property seized was not described in the warrant
4. the warrant was obtained without probable cause
5. the warrant was illegally executed

Question 4

Motion for Continuance

Answer 4

Must be accompanied by a certificate of good faith signed by counsel and must be filed before trial (unless excused for good cause)

Question 5

Motion to Perpetuate Testimony

Answer 5

If witness resides out of state or cannot attend trial/ hearing: her testimony may, upon verified motion supported by aff of credible witnesses, be perpetuated by deposition
- motion to depose to perpetuate testimony must be made after indictment or information & must be filed more than 10 days before trial

Question 6

Motion to Change Venue

Answer 6

Grounds: if for any reason (except complaint ab judge) defendant cannot get an impartial trial in county
- pretrial publicity alone is no enough reason; prejudice or inability to obtain an impartial jury must be established

Procedure: must be made at least 10 days before trial, unless good cause is shown for delay
- must be in writing, accompanied by a cert of good faith signed by moving party’s counsel, and affidavits of at least 2 other persons setting out the factual basis for the motion

Effect if Motion Granted: trial will be moved to any other convenient county where a fair trial can be held
- only the moving defendant is tried in the new venue

Question 7

Motion to Disqualify a Judge

Answer 7

• in writing
• specifically allege the facts and reasons
• be sworn to by the party under oath or by aff
• accompanied by a separate stmt of good faith made by counsel
• must be within a reasonable time not to exceed 20 days after discovery of the facts constituting the grounds

if motion legally sufficient on its face = judge automatically disqualifies themselves

Question 8

Grounds for Motion to Disqualify a Judge

Answer 8

1. judge is prejudiced for or against a party;
2. judge has prior knowledge of or bias re the disputed facts;
3. judge served as a lawyer or lower ct judge in the matter, or previously practiced law with a lawyer currently working on the matter;
4. judge, their spouse/domestic partner, or a person related within the 3rd degree to either them or spouse of such a person:
   a. has more than a de minimis economic interest in the matter;
   b. is acting as a lawyer in the proceeding;
   c. has more than a de minimis interest affect by the proceeding; or
   d. is likely to be a material witness

Question 9

Motion to Protect Identity of Sexual Assault Victim

Answer 9

• keep confidential any record that would reveal victim’s name, address, or photograph
  Must be granted if:
• victim’s identity is not already known to the community,
• the victim has not called public attention to the offense,
• disclosure would be offensive to a reasonable person, AND
• disclosure would endanger the victim or make her unwilling to testify

Question 10

Motion to Expedite

Answer 10

State may move to expedite cases involving abuse of a child, elderly person, or disabled adult