Pretrial Motions in Criminal Cases

What is a pretrial motion in a criminal case?

A pretrial motion is a request asking the judge to decide a specific issue before trial begins. Examples include whether certain evidence can be used and whether the charging document is defective. In federal court, a party may raise by pretrial motion any defense, objection, or request the court can decide without a trial on the merits. State rules set their own requirements. Florida's rule, for example, requires pretrial motions to be in writing and to state their grounds. [2][5]

What is a pretrial motion, and what does it ask the judge to do?

A pretrial motion is a party's request that the judge rule on a specific issue before trial starts. The federal rule describes its reach broadly. A party may raise by pretrial motion any defense, objection, or request that the court can decide without a trial on the merits, meaning without a full trial on guilt or innocence. [2]

Either side can file one, because the rules speak of "a party," meaning the prosecution or the defense. In Florida, every pretrial motion must be in writing, signed, and must state the grounds it relies on. A court may waive the writing requirement for good cause. [5]

Do the same pretrial motion rules apply in every court?

No. Most criminal cases are handled in state courts, and federal courts and each state have their own procedural rules. This page explains pretrial motions through two examples: Rule 12 of the Federal Rules of Criminal Procedure and Florida's Rule 3.190. It does not describe the rules of every state. [2][5]

Which issues must be raised before trial in federal court?

In federal court, Rule 12(b)(3) lists defenses, objections, and requests that must be raised by pretrial motion. This applies when the basis for the motion is reasonably available at that point and the motion can be decided without a trial on the merits. [2]

The first group covers defects in how the prosecution was started. One listed example is a violation of the constitutional right to a speedy trial. The second group covers defects in the indictment or information, which are the formal documents that state the charges. One listed example is a failure to state an offense. [2]

The remaining groups are suppression of evidence and severance of charges or defendants under Rule 14. The last group is discovery under Rule 16. Discovery is the process of obtaining information about the case from the other side. [2]

How does Florida handle defenses raised before trial?

Florida channels many pretrial defenses into a motion to dismiss. Its rule says that every defense available by plea, other than not guilty, must be made by a motion to dismiss the charging document. This covers defenses about form, substance, a former acquittal, former jeopardy, or any other defense. [5]

One kind of Florida motion to dismiss argues two things. First, there are no material disputed facts. Second, the undisputed facts do not establish a prima facie case of guilt, meaning that even taken at face value they would not be enough to show the crime charged. [5]

What happens if a pretrial motion is not filed on time?

In federal court, a Rule 12(b)(3) motion filed late is untimely, though the court may still consider it if the party shows good cause. The judge may set a deadline for pretrial motions at the arraignment or soon after. If no deadline is set, the deadline is the start of trial. [3]

Florida's rule also attaches consequences to lateness. A court must dismiss a motion filed after the court's deadline unless the defendant shows good cause for the delay or the motion rests on fundamental grounds. A motion to suppress must be filed before trial or before the judge's deadline, unless there is good cause for the delay or the state does not object. [5][6]

What is a motion to suppress?

A motion to suppress challenges evidence because of how it was obtained. Under Florida's rule, a defendant may move to suppress evidence the defendant claims the state obtained through an unlawful search or seizure by a government agent. A defendant may also move to suppress statements the defendant claims the state obtained unlawfully. [6]

Florida requires the motion to be specific. It must clearly identify the particular evidence or statements it targets, the reasons for suppression, and the facts the motion is based on. [6]

In federal court, suppression of evidence is one of the issues that must be raised by pretrial motion. To give the defense a chance to make that motion, the defendant may ask for notice of the evidence the government intends to use in its main case at trial. The request covers evidence the defendant may be entitled to discover under Rule 16, and it can be made at the arraignment or soon after. [2][3]

How does a judge decide a motion to suppress?

In Florida, the judge first decides whether the motion is legally sufficient, meaning whether it states a valid basis on its face, before hearing any evidence. A motion that is not legally sufficient must be denied. If the motion is sufficient, the court may take evidence on the factual questions it needs to resolve. [6]

In federal court, the judge must decide every pretrial motion before trial unless there is good cause to put off the ruling. The judge may not delay a ruling if the delay would harm a party's right to appeal. When factual issues are involved, the judge must state the essential findings on the record. [4]

Can a federal defendant challenge the court's jurisdiction at any point?

Yes. Under the federal rule, a motion arguing that the court lacks jurisdiction (the legal power to hear the case) is treated differently from most other pretrial motions. It may be made at any time while the case is pending. It is not limited to the deadline that applies to the issues listed in Rule 12(b)(3). [2]

What happens after a federal judge dismisses a charge because of a defect in the indictment?

A dismissal of this kind does not always end the matter. If a federal court grants a motion to dismiss based on a defect in how the prosecution was started, or a defect in the indictment or information, it may order the defendant released or detained for a specified time while a new indictment or information is filed. [4]

What is severance, and when is it raised in federal court?

Severance means separating charges, or separating defendants, so they are not tried together. In federal court, a request for severance under Rule 14 is one of the issues that must be raised by pretrial motion. This applies when the basis for the request is reasonably available and the motion can be decided without a trial on the merits. [2]

Does the other side get a copy of a pretrial motion in Florida?

Generally, yes. Florida's rule requires that a copy of a written motion be served on the opposing party, along with notice of the hearing, a reasonable time before the hearing. This applies to motions that cannot be heard ex parte, meaning without the other side present. The rule does not fix a single deadline for this. [1]

Is a police officer treated as the government's witness at a federal suppression hearing?

Yes. The federal rule states that at a suppression hearing, a law enforcement officer is considered a government witness. It also makes Rule 26.2 apply at these hearings. Rule 26.2 is a separate federal rule that deals with producing witnesses' statements. [4]