Pretrial Motion Definition

Where You Need a Lawyer:

(This may not be the same place you live)

At No Cost! 

 What Is a Pretrial Motion?

In legal terms, a motion is a document that is filed with a court by one of the parties subject to the case at hand that requests the court to do something, such as to exclude or admit a piece of evidence or raise a legal defense. Although it may seem obvious, a pretrial motion is any motion that is raised prior to the trial phase of the case at hand.

Specifically, pretrial motions are filed or raised after the preliminary hearings have occurred in a case but before the trial phase has formally begun. In general, pretrial motions have a strict filing deadline and will be considered to be waived if they are not raised within the proper time frame. In fact, this is outlined in Rule 12 of the Federal Rules of Criminal Procedure and state statutes.

What Is the Purpose of a Pretrial Motion?

The purpose of a pretrial motion is to request that the court take action. In a criminal case, the purpose is to have the prosecutor and the criminal defense team appear before a criminal court judge and present arguments and certain evidence that should be kept out of the actual trial. However, criminal pretrial motions may also present witnesses to be used during trial and seek to have the court determine whether the case at hand should be dismissed altogether.

It is important to note that in criminal matters, the accepted use of certain items of evidence, witness testimonies, and factual and legal arguments are all affected by the successful filing of a pretrial motion. Further, in some instances, a criminal case may be entirely dismissed through the use of a pretrial motion. As such, pretrial motions sometimes have the effect of shortening a criminal trial.

In civil matters, pretrial motions are utilized by either party to seek clarity on the claim that was filed, obtain information, or have the claim that was filed dismissed altogether. In other words, pretrial motions are utilized to dispose of legal issues before the trial phase of the claim ever begins. As such, pretrial motions are crucial in civil cases in order to prepare for the trial phase of the case at hand. Oftentimes civil law cases will be settled during the pretrial phase.

What Are Some Examples of Pretrial Motions?

As mentioned above, pretrial motions may be utilized in either civil or criminal cases. In civil lawsuits, such as personal injury or employment discrimination cases, pretrial motions may be utilized by either party to clarify or dispose of legal issues before the trial phase commences.

For instance, a defendant in a personal injury case might file a motion for summary judgment, arguing that the plaintiff’s evidence is insufficient to prove their case. Further, in an employment discrimination case, a plaintiff might file a motion to compel the defendant to produce certain documents relevant to the case at hand. On the other hand, a defendant in an employment discrimination case may file a motion to dismiss the case for failure to state a claim. Examples of common civil pretrial motions include:

  • A Motion for Summary Judgment: A motion for summary judgment is essentially a motion that asserts there are no significant factual issues in dispute and that the moving party is entitled to judgment as a matter of law;
  • A Motion to Dismiss for Failure to State a Claim: As mentioned above, this motion is used to argue that the plaintiff’s complaint doesn’t allege enough to constitute a valid claim, even if everything in the complaint is considered true;
  • A Motion to Dismiss for Lack of Jurisdiction: This motion involves dismissing a case due to either personal jurisdiction or subject matter jurisdiction.
    • Lack of personal jurisdiction means the court does not have power over the defendant;
    • Lack of subject matter jurisdiction means the court does not have the power to hear the type of issue being brought before it.

Pretrial motions are also commonplace in criminal matters. Examples of common criminal pretrial motions in federal cases are outlined in Rule 12 and include:

  • A motion alleging a defect in instituting the prosecution, including:
    • (i) improper venue;
    • (ii) pre-indictment delay;
    • (iii) a violation of the constitutional right to a speedy trial;
    • (iv) selective or vindictive prosecution; and
    • (v) an error in the grand-jury proceeding or preliminary hearing;
  • A motion alleging a defect in the indictment or information, including;
    • (i) joining two or more offenses in the same count (duplicity);
    • (ii) charging the same offense in more than one count (multiplicity);
    • (iii) lack of specificity;
    • (iv) improper joinder; and
    • (v) failure to state an offense;
  • A motion alleging there was a suppression of evidence;
  • A motion regarding severance of charges or defendants under Rule 14; and/or
  • A motion discovery under Rule 16.

Examples of common state criminal law pretrial motions include, but are not limited to:

  • A motion to exclude or admit specific items of evidence (i.e., “Motions in Limine”);
  • A motion to change the venue (i.e., the location) of the trial;
  • A motion to allow or prevent witnesses from testifying;
  • A motion to exclude or suppress a defendant’s confession or statement;
  • A motion to compel the opposing party to release evidence;
  • A motion to dismiss the criminal case altogether.

What Is Suppression of Evidence Pretrial Motions?

As mentioned above, in a criminal case, a pretrial motion alleging suppression of evidence is very often used. Suppression of evidence in pretrial motions is used to throw out or bar certain evidence from being utilized in the criminal trial because that type of evidence was gathered illegally.

In general, the defense attorney will file a motion asking the judge to prevent the use of that evidence at the trial. The type of evidence covered by a pretrial motion in limine can be physical evidence, a confession, or even a statement. One of the strongest arguments utilized by criminal defense attorneys is that the police illegally obtained the evidence or that the police improperly took the statement. For instance, if the statement was obtained through questioning prior to the defendant being read their Miranda Rights.

What Is a Motion to Compel Evidence Pretrial Motions?

In a criminal case, a motion to compel evidence is used when the defense team is asking the judge to make the prosecution turn over all the evidence it has obtained of the defendant so they can properly prepare for trial. It is important to note that prosecutors are required to do this after the Brady case.

Brady v. Maryland, 373 U.S. 83 (1963), was a landmark United States Supreme Court case that established that the prosecution must turn over all evidence that might serve to exonerate a defendant to the defense. In other words, the prosecution has a duty to turn over all exculpatory evidence to the defense.

In many cases, the prosecution has evidence that it has not shared or turned over to the defendant. In this case, the defense will file a motion to compel the evidence to get all the evidence to prepare for trial.

For instance, if a case involves issues of police brutality, an attorney may make a motion to compel a police agency to turn over copies of prior complaints against the officers involved in the case, including bodycam footage. The prior complaints may then be used to show the officers’ propensity to commit brutality against their clients.

How Are Specific Pretrial Motions Used in a Criminal Case?

Once again, in criminal matters, most pretrial motions have to do with the suppression of physical evidence or witness testimony. For instance, in a drug trafficking case, the defense attorney may file a motion to exclude drugs that were illegally searched and seized by the police.

Finally, a motion to dismiss a criminal case may also be filed by a defense attorney or defendant under certain circumstances. For example, if the police lacked probable cause to make an arrest, then the case against the defendant may be dismissed.

Do I Need a Lawyer for a Pretrial Motion?

As can be seen, navigating through the legal system can oftentimes be complex, and properly raising pretrial motions is no exception. As such, if you are involved in a criminal matter, it is in your best interests to consult with an experienced criminal lawyer.

An experienced criminal lawyer can ensure that all pretrial motions are timely and properly raised and that your legal rights are being protected. Additionally, an attorney can also represent you at any in-person criminal proceeding and at your criminal trial, if necessary.


16 people have successfully posted their cases

Find a Lawyer