A criminal defense attorney doesn’t automatically begin thinking about appealing a conviction that hasn’t even happened yet. However, the best criminal defense lawyers are aware of the need to preserve issues for appeal by filing certain motions, objecting to motions, and presenting evidence or testimony at trial. In some cases, issues must be raised before trial even begins.
To overturn a conviction on appeal because of an error in a trial court ruling, an appellate attorney must show that the error infected or changed the outcome of the trial. Not just any error will do. The pre-trial motions discussed below set up an appeal by presenting requests that, if denied, may change the fairness or outcome of the trial.
When you hire the award-winning criminal appeals lawyers at Spolin Law P.C., we will evaluate every motion that was made or should have been made in your case. Our legal team will identify legal errors that can effectively get your conviction overturned.
Call us today to learn about your options for relief: (310) 424-5816.
1. Motion to Dismiss
A motion to dismiss an indictment or case against a defendant is a powerful basis for an appeal. When a court denies a pre-trial motion, the defendant usually has to show that they were prejudiced by the denial. Denial of a motion to dismiss has obvious prejudice: the defendant would never have been tried had the motion been granted. The appellate court’s reversal of a denial would require overturning a conviction.
A motion to dismiss may be based on numerous grounds, including the following.
If the defendant raises a constitutional objection as outlined above to their indictment or trial in a pre-trial motion and the motion is denied, a successful appeal will overturn the conviction.
Validity of the Indictment or Information
An indictment may fail to allege all the elements necessary to state a crime or to support the charge against the defendant. If the indictment fails to allege intent or knowledge, for example, and those elements are part of the crime charged, the indictment is faulty and should be dismissed. In some states, the failure of the indictment to allege all necessary elements is not accomplished with a pre-motion but with a demurrer, which serves as a challenge to an indictment. If a trial court overrules a demurrer, the defendant may raise that issue on appeal.
Statute of Limitations
Most states have laws that limit the time in which the state may charge the defendant with a certain crime. If the statute of limitations has passed, the defendant may not be tried. A motion to dismiss based on the limitations period, if denied, may be appealed, and could result in the case being overturned.
Lack of Jurisdiction over the Defendant or the Case or Improper Venue
Jurisdiction over the case and the defendant must exist before a trial is valid. Likewise, the case must be brought in the proper venue or court.
A state court may lack jurisdiction over the case if the allegedly unlawful act was a violation of federal rather than state law or if the court has lacks jurisdiction over the type of crime alleged. For example, in some states, some courts are limited to hearing misdemeanors and so would not have jurisdiction over a felony. A court may also lack jurisdiction over an out-of-state defendant if the offense is alleged to have occurred entirely outside of the state.
Venue may be inappropriate if the defendant does not reside in the county and the crime with which the defendant is charged occurred entirely outside the county in which they are being tried. While most state statutes define venue broadly, allowing the defendant to be tried in any county in which any part of an offense (such as planning it) took place, venue may be lacking and may be the subject of a motion to dismiss.
If the trial court denies a valid motion to dismiss, a successful appeal will overturn the conviction.
2. Motion to Suppress
Evidence obtained against the defendant in violation of their constitutional rights may support a motion to dismiss, as indicated above, if the violation affects the validity of the indictment or information against the defendant. If the court declines to dismiss the action or if the unconstitutionally obtained evidence does not render the indictment or information invalid, a defense attorney may file a motion to suppress the evidence. This is a motion in which the attorney requests the court to forbid the state from using during the trial any evidence that it obtained in violation of the defendant’s rights. Although the granting of such a motion does not result in dismissal of the charge against the defendant, the exclusion of evidence may severely undermine the state’s case against them.
This is especially true of statements the state obtained in violation of the defendant’s Fifth Amendment rights. Even statements short of a confession can be damaging or potentially fatal to a defense. They may be contradictory or may implicate the defendant in the offense with which they are charged. Without admissions or implicating statements, the state will be forced to used other, less direct, and possibly less reliable or believable evidence to prove its case beyond a reasonable doubt.
The absence of incriminating evidence that the state seized in violation of the defendant’s Fourth Amendment right against unlawful searches and seizures may likewise cripple the state’s case. Without that evidence, the state must find alternative means to establish the defendant’s guilt.
The denial of a valid motion to suppress is a powerful basis on which to overturn a conviction on appeal. Particularly if the bulk of the state’s case is based on illegally obtained evidence, a motion to suppress, if it had been granted, would have substantially weakened the state’s prosecution, and will provide the prejudice necessary for an appellate to reverse a conviction.
3. Motion for Discovery — Beyond Brady
In a criminal prosecution, the state has the duty, known as the Brady duty, to provide the defense with exculpatory evidence in its possession or control. Relying on the prosecutor’s determination of what is exculpatory and what is not is risky. Filing a motion for discovery enables the defendant to seek specific physical evidence, witness statements, and records that might otherwise never be turned over. Even if the information or evidence is only tangentially related to the defense, it may provide a launching point for locating other evidence. It may uncover evidence or witnesses damaging to the prosecution’s case. As long as the motion is not a fishing expedition, a court should allow discovery of the state’s evidence and witnesses.
For instance, a defendant’s discovery motion may request the names of the police officers or investigators who gathered the evidence against the defendant. In some cases, the defendant may have the right to review the officer’s or investigator’s file (through a Pitchess Motion) to determine whether complaints were filed against him or her for Fourth Amendment violations. Such evidence may be pertinent to a motion to dismiss or motion to suppress. Similarly, the defendant may discover that persons other than witnesses have knowledge of the facts of the case. These people may provide invaluable information for the defense that the prosecution did not pursue.
If a court denies a valid motion to dismiss and evidence valuable to the defense was available in the state’s possession or control, such a denial supports overturning the conviction on appeal because the defendant was not given a fair trial — that is, not given the chance to introduce to the jury evidence that undermined the state’s case.
4. Motion in Limine
Related to a motion to suppress, a motion in limine asks the court to admit or exclude certain evidence or testimony at the trial. While a motion to suppress is generally based on constitutional violations, a motion in limine is based on prejudice to the defendant. The denial of the motions listed below may result in the reversal of a conviction on appeal. Likewise, if the court grants the motion and the state acts contrary to the decision, an appellate court may reverse the conviction.
Motion to admit or exclude prior conviction(s) for crimes of moral turpitude to impeach witness credibility. Depending on whether the witness is favorable to the state or to the defendant, this motion asks the judge to exercise thier discretion to allow the jury to hear about prior conduct that could affect the credibility of a state’s witness or to exclude such evidence against a defense witness. Whether the state’s witness is susceptible to impeachment can be determined by a motion for discovery, discussed above.
Motion to bar the prosecutor from commenting upon an accused’s invocation of Fifth Amendment rights. The defendant has a Fifth Amendment right not to make incriminating statements against themself and the right not to testify at trial. The Constitution also protects the defendant’s right to be represented by counsel. Although the Constitution bars a prosecutor from commenting directly or indirectly upon an accused’s invocation of these Constitutional rights, evidence obtained during discovery may indicate that the state could refer to the exercise of these rights during opening or closing, particularly if the state’s case is otherwise weak. A defense attorney should seek to prevent such a reference by moving the court for an order prohibiting it.
Bruton Motion to bar the prosecution in a joint trial from introducing a co-defendant’s out-of-court statement. Allowing such a statement violates the defendant’s right under the Sixth Amendment to confront the witnesses against them, and the United States Supreme Court has held that a limiting instruction to consider the statement only in determining the co-defendant’s guilt or innocence is insufficient to remedy the violation of the confrontation clause. The prosecutor’s disclosure of evidence as well as discovery may reveal the state’s intent to use an out-of-court-statement against a co-defendant. Counsel for the defendant should file a Bruton motion to prohibit such use.
Frye Motion, a special motion in limine, dealing with scientific or expert evidence. If the scientific or other technique for analyzing evidence or testimony is new, unestablished, or not generally accepted in its field, it may be unreliable and damaging to the defendant. A Frye motion asks the judge to bar the use of such evidence unless the reliability of the scientific method or the expertise of the interpreting witness are established. Pseudo-scientific evidence can influence the jury to convict a defendant when other evidence would not.
Motion to disclose identity of informant. The state does not ordinarily disclose the identity of a confidential informant. However, knowing who the informant is can provide the defendant with the opportunity to call the informant as a witness and impeach them, identify an ulterior motive for providing information to the authorities, or otherwise undermine the state’s case. Identifying the informant may be necessary to provide the defendant with a fair trial. If the information supplied is the only basis for probable cause for a search or for charging the defendant or the state’s case is based primarily on information from an informant, filing a motion to identify the informant is critical.
The denial of any of the motions in limine listed above affect the fairness of the trial and prejudice the defendant. On appeal, the appellate court’s reversal of the denial will support overturning the conviction.
5. Motion for a Change of Venue
A defendant is entitled to be judged by an impartial jury based only on the evidence presented at trial. In some cases, a crime is sensationalized by the media, statements by the police or a victim, video recordings of the events leading to a charge against a defendant, or simply the unusual, unique, or heinous nature of the crime. When that happens, the judgment of jurors in the jury pool in the vicinity of the crime may be so tainted by what they have seen or heard that they can no longer be unbiased — that is, they can no longer reasonably say that they have not formed an opinion on guilt or innocence. The defendant is therefore unable to receive a fair trial from that jury pool. For a defense attorney who believes that the passions and prejudices of potential jurors would deprive their client of a fair trial, a motion for a change of venue can be crucial.
6. Motion to Sever Trial or Cases
In most states, when the defendant is accused of committing a crime, connected crimes, or a series of crimes with another person or persons, the defendant and any others charged with the crime(s) are tried together as co-defendants. This is to preserve state resources: to keep the prosecution from having to present the same witnesses and evidence multiple times. However, in some circumstances, the risk exists that evidence against one of the co-defendants will bleed over into the evidence against the defendant, resulting in a conviction founded on insufficient evidence against the defendant.
In other cases, the interests of the co-defendant(s) are not entirely aligned with the interest of the defendant. Evidence or testimony that may be damaging to one co-defendant may be beneficial to the defendant and competing motions in limine may work to the disadvantage of the defendant. Likewise, a co-defendant might have made an incriminating statement to the authorities while the defendant did not. As stated above, a Bruton motion is supposed to limit the use of a co-defendant’s statement against a defendant, but a court may overrule such a motion, and the statement will come in, prejudicing the defendant.
In such a case, a pre-trial motion to sever the trials against the defendant and their co-defendant(s) is imperative. Whenever the evidence against one co-defendant is unfairly prejudicial to the defendant, an attorney should move to separate the trials. A defendant deserves a fair trial, which is impossible if the interests of the co-defendant(s) and the defendant are at odds.
Similarly, if a defendant has a number of unrelated cases against them that have been combined, a fair trial may not be possible. The risk exists that strong evidence in one case may cause the jury to convict the defendant in the other cases, even if conviction in those cases is not supported by the evidence. Rather than having to appeal based on sufficiency of the evidence, an attorney should file a motion to sever the cases and have each tried separately. If the motion is denied and the defendant convicted in all cases, failure to sever the cases is a strong basis for overturning the convictions on appeal.
7. Motions Particular to Individual States
Some states have pre-trial motions unique to their trial process, and counsel should investigate and take advantage of these motions. For instance, in many states, an attorney may file a motion for a bill of particulars. A bill of particulars requests the prosecutor to expand on a vague information or indictment and identify specific facts supporting the charge against the defendant, which can help a defendant prepare for trial or prepare a motion in limine to exclude certain evidence. It does not provide the prosecutor’s strategy or identify the precise evidence that the state will use to prove each element of its case, but a bill of particulars can assist the defense in limiting the evidence presented at trial and prevent surprise.
If the court denies a motion for a bill of particulars and the defendant is convicted, the denial may have deprived the defendant of a fair trial and is strong grounds for overturning the conviction on appeal.
In some states, a motion for a bill of particulars tolls the running of the speedy-trial calculation, so an attorney will need to consider whether the bill of particulars or the speedy-trial strategy is more effective.
Other pre-trial motions, if denied, can set up the grounds for a reversal of a conviction. The availability of motions such as this make it crucial for an attorney to investigate all available pre-trial motions.
Spolin Law P.C. Identifies All Possible Pre-Trial Motions
Overturning a conviction on appeal is a daunting task. Generally, a defendant must show prejudice from an error in the trial to vacate the conviction, and appellate courts are reluctant to find prejudice that infected the fairness of the trial. A trial court’s denial of any of the motions listed above would provide strong support for prejudice and reversal of the conviction. They all go to whether the defendant received a fair and constitutionally sound trial, whether it is state or federal constitutional violations, the exclusion of evidence that could have been presented for the defense, or admission of unfairly prejudicial evidence or testimony. While pre-trial motions have a significant impact on how a criminal trial is conducted, they are also strategic ways to set up the success of an appeal and overturn a conviction.
When the award-winning criminal appeals lawyers at Spolin Law P.C. approach a case, we immediately review trial court transcripts to determine if the defense attorney missed any potential pre-trial motions. Additionally, we consider whether the trial court erred in denying any motions that were presented. This information will be the strong basis for our appeal or writ of habeas corpus.
To learn more about how we can help in your case, contact Spolin Law P.C. at (310) 424-5816.