Motions in Criminal Defense Cases

Apr 4, 2022

At Swingle Levin Law, we can make sure all possible motions in criminal defense cases are filed in order to successfully fight criminal allegations.


What Are Motions in Criminal Cases?


Motions, or a request that the court takes some action, are one of the defense lawyer’s most effective tools in fighting criminal allegations. They provide leverage in negotiations, ensure that law enforcement scrupulously honors your constitutional rights (or pay for their failure to do so), and help move your case in the direction most likely to achieve your desired outcome.


Filing a Motion in a Criminal Case


Motions in criminal cases can be pretrial motions, trial motions, or post-trial motions, meaning they can be filed before a trial, during the trial, and even after a trial.

Some basic categories of motions include motions to suppress, motions for additional discovery, demurrers, constitutional challenges to statutes, motions in limine to exclude or admit certain pieces of evidence, and motions related to how the court will conduct your trial.

Every motion works differently. For example, if the police obtained evidence without a valid search warrant, a defense attorney can file a motion to suppress evidence. By filing this motion, the attorney is asking the judge to suppress a piece of evidence that was illegally obtained.

With a motion for discovery, the attorney asks the judge to order the prosecution to surrender certain evidence that can prove the defendant’s innocence.

On the other hand, if the defense attorney thinks there isn’t sufficient evidence or the defendant’s right to a speedy trial was violated, they can file a pretrial motion to dismiss some or all charges.

Examples of more specific motions include motions challenging the composition of the grand jury, motions seeking to exclude evidence that doesn’t meet certain scientific standards (we used to call them Harper Motions, but that law is being changed as I write this), and a motion to have a jury view the scene of the alleged crime. The range of possible motions is limited only by your lawyer’s creativity.


Evidentiary and Non-Evidentiary Motions


Some motions are non-evidentiary, which means that the court will decide them based only on the law and oral arguments made by the lawyers. Other motions are evidentiary, which means that your lawyer (or perhaps the prosecution depending on who has the burden of production) will adduce evidence at a hearing from witnesses in addition to citing law and making arguments to the court. Even if a motion is non-evidentiary, you may still want to use visual aids to make your legal arguments more persuasive.

Many motions are time-sensitive. OCGA § 17-7-110 states, “All pretrial motions, including demurrers and special pleas, shall be filed within ten days after the date of arraignment unless the time for filing is extended by the court.” If you don’t file those motions within that time limit, you may lose your right to raise those issues forever. Thus, your case depends on timely filing motions, not just filing them at the last minute. The trial court can legally deny a motion because it isn’t timely filed (See, e.g., Henderson v. State, 285 Ga. 240 (2009)).


How Can We Help With Motions in Criminal Cases

I have successfully litigated thousands of motions all across the state in some of the most serious felony cases, including high-profile death penalty cases. In major felony cases, it’s common for me to file more than 100 motions to ensure that no stone is left unturned in my effort to fight your case. If you’re looking for someone who will raise all possible legal issues for you, give me a call.

Practice Area: Criminal Defense