Many criminal cases are won or lost long before a jury is empaneled and the first prosecution witness testifies at trial. Motions to dismiss, motions to suppress, motions to sever counts or defendants, motions to exclude evidence, and many other potential substantive motions must be carefully considered. When such a motion may help our client by weakening the prosecution’s case and increasing our leverage to obtain a favorable result, we research, brief, and argue the motion before the trial court and, in some circumstances, before an appellate court as well. A successful motion may end the case altogether or seriously hamper the prosecution’s ability to present its case at trial.
In a recent case, the Court suppressed law enforcement’s discovery of a large amount of heroin with street value exceeding $25,000.00, due to several errors committed by the arresting officer. The State filed a Motion for Substantial Impairment with the Appellate Court and on appeal, a three-judge panel affirmed, unanimously, that my client’s traffic stop was impermissibly prolonged and that the resulting discovery of the drugs was unlawful:
The opportunity to weaken the prosecution’s case through effective motion practice should never be wasted.
Discovery motions are also an essential element of our pretrial practice. Automatic discovery under the rules of criminal procedure is limited and grossly inadequate in many cases. One way to obtain the factual tools we need to attack the prosecution’s case at trial is through the creative and aggressive use of discovery motions. The increasing importance and complexity of forensic evidence in our trial courts had made pretrial discovery even more essential. The competency of crime lab technicians and the reliability of forensic testing techniques cannot be effectively challenged without obtaining the necessary materials through pretrial discovery. Conversely, we may need to resist the government’s efforts to obtain access to the fruits of the defense investigation and the materials the defense intends to use to challenge the prosecution’s case at trial. Discovery litigation in the criminal area is increasingly contentious and increasingly pivotal to the outcome of our cases.
