Pretrial Motions

Fundamentals of Procedural Law by Adam J. McKee

In the world of criminal law, the action really begins before the trial starts. The maneuvers and decisions made during this period can greatly affect the outcome of a case. One important part of this pre-trial phase is the filing of pretrial motions. These are requests or applications that lawyers make to the court on behalf of their clients. Pretrial motions can shape a trial in significant ways, affecting what evidence can be presented, who will testify, and even where the trial will take place. As a law student, it’s essential to understand pretrial motions, their purpose, and their impact on a criminal trial.

Introduction to Pretrial Motions

Pretrial motions are legal requests that lawyers make before a trial begins. They ask the court to make specific rulings or decisions that can affect how the trial proceeds. Lawyers submit these motions in writing, and judges decide whether to grant or deny them based on the law and the facts of the case.

Pretrial motions play a vital role in the criminal justice system. They help to ensure that a trial is fair and just. Through these motions, lawyers can question the legality of evidence, clarify the charges against a defendant, or request changes that may lead to a more impartial trial.

The Process of Filing Pretrial Motions

Who Can File Pretrial Motions

Both the prosecution (the government lawyers who are trying to prove the defendant’s guilt) and the defense (the lawyers representing the accused person) can file pretrial motions. Lawyers use these motions to request rulings on legal issues that need to be decided before the trial begins.

When and How These Motions Are Usually Filed

Pretrial motions are typically filed after the defendant’s arraignment (the formal reading of charges) but before the trial starts. The exact timing can vary depending on the rules of the specific court and the details of the case. Lawyers write and submit these motions to the court, and then both sides usually have a chance to argue their positions in a pretrial hearing.

The Role of the Judge in Pretrial Motions

The judge plays a critical role in the pretrial motions process. After the lawyers for both sides have had a chance to argue their positions on a motion, the judge decides whether to grant or deny the request. This decision can have a big impact on how the trial proceeds.

The Most Common Pretrial Motions

Motion to Dismiss

A Motion to Dismiss asks the court to throw out the charges against the defendant. Lawyers may file this motion when they believe there’s insufficient evidence, a lack of jurisdiction, or a violation of the defendant’s rights.

Motion for Change of Venue

A Motion for Change of Venue is a request to move the trial to a different location. This motion is often used when the defense fears that pre-trial publicity may prevent a fair trial.

Motion to Suppress Evidence

In a Motion to Suppress Evidence, a lawyer asks the court to exclude certain evidence from the trial. They usually file this when they believe the evidence was obtained illegally, violating the defendant’s Fourth Amendment rights against unreasonable searches and seizures. The landmark case Mapp v. Ohio (1961) established the “exclusionary rule,” which makes illegally obtained evidence inadmissible in court.

Motion for Discovery

A Motion for Discovery is a request for the prosecution to provide the defense with information they have about the case. This process ensures both sides have access to the same information, promoting fairness in the trial.

Motion for a Bill of Particulars

A Motion for a Bill of Particulars is used when the defense needs more specific details about the charges. It allows the defendant to prepare a more informed defense.

Motion to Sever Defendants or Offenses

A Motion to Sever Defendants or Offenses is a request to separate multiple defendants or charges into separate trials. This motion can be filed when a lawyer believes that having all parties or charges in one trial could prejudice the jury against their client.

Motion for Speedy Trial

The Motion for Speedy Trial is based on the Sixth Amendment right to a speedy trial. If the defense believes the trial is being unnecessarily delayed, this motion can compel the court to set a trial date.

Motion to Determine Competency

A Motion to Determine Competency is filed when there’s doubt about the defendant’s mental ability to stand trial. If granted, the court will evaluate the defendant’s mental state. The Dusky v. United States (1960) case set the standard for competency, holding that defendants must have a rational understanding of the proceedings against them.

Motion in Limine

A Motion in Limine asks the court to limit what can be discussed in front of the jury. For example, it might request that certain prejudicial information not be mentioned during the trial.

Motion for Recusal

A Motion for Recusal is filed when a party believes the judge cannot be impartial in the case. If granted, the judge will step aside, and a new judge will be assigned.


Pretrial motions are pivotal in shaping the course of a criminal trial. They ensure fairness and adherence to legal principles in the proceedings.

Lawyers use pretrial motions as strategic tools, whether to challenge the legality of evidence, demand more specifics about the charges, or ensure a speedy trial. These motions can significantly impact the case’s outcome.

Understanding pretrial motions is key to navigating the criminal justice system. Further study can provide valuable insights into the tactics and strategies used in legal proceedings.  To gain an in-depth understanding of these legal maneuvers, consider exploring some landmark Supreme Court cases that have shaped the use of pretrial motions. For example, Brady v. Maryland (1963) revolutionized discovery rules by requiring the prosecution to share all exculpatory evidence with the defense.


The section provides a comprehensive overview of pretrial motions, a crucial aspect of criminal law. It begins by defining pretrial motions and discussing their importance for ensuring a fair trial. Both prosecution and defense can file these motions after arraignment but before the trial begins. A judge’s role is then discussed, emphasizing the impact of their decisions on trial proceedings.

Ten common pretrial motions are outlined next, including Motions to Dismiss, for Change of Venue, to Suppress Evidence, for Discovery, for a Bill of Particulars, to Sever Defendants or Offenses, for Speedy Trial, to Determine Competency, in Limine, and for Recusal. Each motion is explained with its purpose and potential implications for a trial. Landmark cases like Mapp v. Ohio and Dusky v. United States are referenced, showing how these cases shaped the legal landscape. The conclusion underscores the strategic role of pretrial motions, encouraging further study to understand legal tactics and strategies better.

Modification History

File Created:  08/08/2018

Last Modified:  07/27/2023

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