Abstract
Pretrial motion is mainly concerned with a request submitted to a court pleading the court to initiate some actions like ordering the other parties to divulge some information or to dismiss a defective indictment. This research essay deals with various aspects of pretrial motion including pretrial motion to suppress evidence, pretrial motion for speedy trial in detailed manner.
Background
Rule twelve (b) of the “Federal Rules of Criminal Procedure” states about the pretrial motions. (Bacigal, 2008, p256). Any request, defense or objections which are competent of resolution devoid of any court proceedings of the common matter may be pleaded at any time before trial by motions. At the discretion of the judge concerned, the pretrial motion may be either in written or by oral.
The following may be raised at any time before the commencement of a trial.
- Objections and defenses footed on a deficiency in the institution of prosecution or
- Objections and defense are footed on deficiencies in the information or indictment.
- Motions to suppress evidence (Bacigal, 2008, p256).
- Plea for discovery.
- Pleas for a discontinuance or release of defendants or charges. (Bacigal, 2008, p256).
Thus, pretrial motion is mainly concerned with a request submitted to a court pleading the court to initiate some actions like ordering the other parties to divulge some information or to dismiss a defective indictment. Though the counsel should mention the grounds on which the motion is being submitted and the details of relief demanded from the court, counsel is no longer required to differentiate between pleas in bar, pleas in abatement, other antiquated pleas and motion to quash. In contemporary practice, the counsel requires only to differentiate between motions that must be raised before trial starts and motions that may be raised before any time a verdict is pronounced. It will be construed as a waiver of rights if there is a failure to file a pretrial motion at the appropriate time. (Bacigal, 2008, p256).
Before commencing any trial proceeding, many courts place the litigation for a pre-trial hearing or pre-trial conference. In a pre-trial conference, without the presents of clients, only attorneys will attend such hearings. Thus, the attorneys, in the presence of judge, would seek to try to consent on unquestioned issues or facts called stipulations. The use of the map of the accident spot or the time and location of an accident, the sketches of place where murder took place and other points of law are known as stipulations. (Bacigal, 2008, p256).
The main intention of pretrial motion is to reduce the actual time taken for trial without breaching upon the privilege of either party. Without a trial, pre-trial proceedings will help to find a settlement of the case and thus, the main objective of a pre-trial conference is to find a settlement for the case. (Hatch & Hatch, 2006, p.96).
Attorney should make proper demands for discovery and he should respond to the demands made by the other side. Both the defense and prosecutor, under criminal law, have an ongoing obligation and duty to always retort to discovery whenever a new piece of information becomes available. An attorney has to draft pre-trial motions, which need a lot of legal research on the subject. (Hatch & Hatch, 2006, p.85).
For administrative convenience, the attorney should have a calendar for all significant dates which includes dates from the arraignment where the court informs the defendant about the charges, and then the defendant makes a plea until to the actual trial date. Between the pre-trial proceedings and actual date of hearing, there may be hearings for pre-trial proposals for crushing proof from unlawful arrest or a search warrant or for bond reductions, discovery compliance hearings and readiness hearings. (Hatch & Hatch, 2006, p.85).
In U.S.A, if a defendant’s attorney is of the view that the charge has been framed by neglecting the defendant’s privilege, he can make pretrial motions to the court pleading that a specific action has to be granted to safeguard his client. The following will be included in a pretrial motion.
- Motions to crush evidence gathered illegally.
- Motions for a change in the venue since the defendant may not receive a fair trial in the original jurisdiction.
Just before the commencement of trial, both the defense and the prosecution can present motions. If a request to the prosecution is made to present the evidence available to the defense which the prosecution is intending to initiate at the trial stage, it will be known as a motion for discovery. At the pre-trial stage, the prosecution is also under obligation to hand over any exculpatory corroboration which is also known as evidence that might expose the innocence of the defendant. If a request is made to restrain some evidence like a coerced confession that is either defense or the prosecution is likely to employ throughout trial.
Employing a pre-trial motion to repress proof or evidence
During the pretrial proceedings, a motion to suppress evidence is employed for criminal actions. A defendant can claim relief under Fourth Amendment for safeguard against unwanted seizure and search and under Fifth Amendment for self incrimination and under Fourteenth Amendment, protection for due process. Thus, a motion to suppress is pleading the judge to bar some proof that was gathered inappropriately despite that proof may be highly incriminating and relevant for the case. (Buckles, 2003, p.98).
If the prosecution has engaged in the claiming evidence through an illegal process, then the defendant has the right to object the same. In such scenario, a special procedure is employed to decide on the protest. In such typical non-constitutional admissibility scenario, the objection will be decided during the trial at the very instant when admission is demanded. For example, if the government attorney attempts to put on evidence as to somebody’s out-of-court declaration, it is at that juncture that the defendant refutes. However, rebuttal to evidence on the footing that it was ended in infringement of the Constitution is varying: In most of the states, acceptance of proof or evidence is decided well before the trial even commences by way of pre-trial motion to suppress. Thus, any evidence whose admission is objectionable due to un –Mirandaised confession, through allegedly illegal seizure or search, due to an unduly suggestive show-up or line –up and these are all decided by a suppression motion. (Emanuel.2007, p.375).
A defendant can make protests for pre-trial identifications and lineups. Under the Fifth Amendment, an accused may contest that an identification parade infringes his privilege against self-Incrimination. However, an ordinary voice sample or physical lineup may not be tantamount to against self-incrimination. (Emanuel 2007, p.257).
An accused may contest that an identification parade infringes his right under Sixth Amendment to counsel. During a pre-trial lineup, a defendant has the privilege to have an attorney or counsel. Further, a defendant can also object that a lineup process is against his rights under due process of law. (Emanuel 2007, p.257).
The normal canon is that a pretrial identification is allowable in evidence except the procedure was “so gratuitously suggestive of the defendant’s guiltiness that it resulted in a major likelihood of misidentification as held in Neil v. Biggers. (Bergman & Berman, 2009, p112).
Further, the onus is even greater for defendants in search to suppress a show up identification parade. Unless, there is a major chance of irreparable misidentification, a show up identification is admissible as held in Summons v U.S. (Bergman & Berman, 2009, p112).
Right to have a speedy trial
One of the fundamental principles of the American Criminal Justice system is that an individual is regarded innocent until the proven guilty.
According to Sixth Amendment, in all criminal prosecutions, “the privilege to have a speedy trial rests with the “accused.” In Marion case, the Supreme Court held that once the individual has been formally indicted with a crime based on any evidence, which is enough to offer a basis for bringing the accused to trial. (Herman, 2006, p.214).
Under 18 U.C 3161, a defendant can, under the Federal Speedy Trial Act, can press for a preliminary hearing that should be completed within one month of the time from the date of arrest of the defendant and many states in U.S.A have similar time frames.
In majority cases, judges just approve voluntary agreements between prosecution and defense and if a defendant waives some of his legal rights, in such scenario, the judge will ask the defendant to personally stipulate to a continuance to demonstrate that the defendant is not demanding for a speedy trial. (Bergman & Berman, 2009, p427).
Speedy trial laws demand prosecutors to file charges on those suspects who are in custody within seventy-two hours of arrest. Some states have framed lesser time for filing charge. For instance, under S 825, California demands that charges should be filed within forty-eight hours. (Bergman & Berman 2009, p141).).
The right to the speedy trial was applied against states In Klopfer v.North Carolina. North Carolina State had a law that permitted the prosecutor to defer criminal prosecution indefinitely without dismissal of the indictment. This piece of law permitted the prosecutor to reframe the charges against the accused any time the prosecutor wanted to do though the defendant would not be incarcerated until then. The Supreme Court viewed that this piece of law was unconstitutional in that it infringed defendant’s privilege to a speedy trial as advocated by the Sixth Amendment. (Kusha, 2004, p.20).
In Dicky v Florida, the Supreme Court observed what is tantamount to “speedy” as regards to length of time in any specific jurisdiction. The Supreme Court ruled that since it had taken more than 8 years for the State of Florida to commence trial in spite of the fact that the defendant was in continuous residency in state jurisdiction, it had infringed Dickey’s privilege to have a speedy trial. (Kusha, 2004, p.20).
Rationale
In U.S, a prosecutor cannot deliberate on pretrial silence of a defendant whereas in U.K, a prosecutor can deliberate that accused failed to answer questions during interrogation at the time of trial. (Siegel, p342). Thus, rationale for pretrial motion is to minimise the legal expenses and to make the relief within short frame of time.
Justifications
Rule 12 (b) of the Federal Rules of Criminal Procedure provides about the pretrial motions. Any request, defense or objections which are competent of resolution without any trial of the general issue may be pleaded at any time before trial by motions.. A defendant can claim relief under Fourth Amendment for safeguard against unwanted seizure and search and under Fifth Amendment for self incrimination and Fourteenth Amendment, protection for due process. Thus, a motion to suppress is pleading the judge to bar some proof that was gathered inappropriately despite that proof may be highly incriminating and relevant for the case. One of the fundamental principles of the American Criminal Justice system is that an individual is regarded innocent until the proven guilty. According to Sixth Amendment, in all criminal prosecutions, “the privilege to have a speedy trial rests with the “accused.”
Thus, pretrial motion, pretrial motion to suppress evidence and pretrial motion for speedy trial are all a boon to the accused in a criminal proceeding as it offers early resolution of the case within a time-frame within minimum legal expenses. It is to be recalled that in Klopfer v.North Carolina. North Carolina State had a law that permitted the prosecutor to defer criminal prosecution indefinitely without dismissal of the indictment. The Supreme Court viewed that this piece of law was unconstitutional in that it infringed defendant’s privilege to a speedy trial as advocated by the Sixth Amendment. (Kusha, 2004, p.20).
References
Basigal, Ronald J. (2008).Criminal Law And Procedure – An Overview. New York: Cengage Learning.
Bergman, Paul & Berman, Sara. (2009). The Criminal Law Handbook. New York. Nolo.
Buckles, Thomas. (2003). Laws of Evidence. New York: Cengage Learnings.
Emanuel, Steven, L. (2007). Criminal Procedure. New York: Aspen Publishers.
Hatch Scott & Hatch, Lisa Zimmer. (2006). Paralegal Careers for Dummies. New York: Dummies.
Herman, Susan N. (2006) The Right to a Speedy and Public Trial. New York: Greenwood Publishing Group.
Kusha, Hamid R. (2004). Defendant’s Right. A Reference Book. New York: CLIO.