Motions

In this episode Criminal Defense Attorney John L. Calcagni highlights the legal term Motions by putting them into 4 Categories. 

https://www.calcagnilaw.com/

John L. Calcagni, III, is a prominent Rhode Island criminal defense attorney with extensive experience as a former military prosecutor (JAG Corps) and Special Assistant U.S. Attorney, specializing in federal, state, and military cases, including violent crimes, drug offenses, sex crimes, and white-collar cases, leveraging his prosecution background for defense in state and federal courts. He holds a Juris Doctor from Roger Williams University Law School, is admitted to practice in multiple states and federal courts, including the U.S. Supreme Court, and is recognized as a SuperLawyer. 

Transcript

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SPEAKER_00 0:13

What's your mercy? Metaphor. Has the jury reached a verdict? I'm John Calcagney, New England's premier criminal defense lawyer, and you're listening to my exclusive podcast. Not guilty, where all things criminal defense are explained and discussed. Thanks for listening and stay tuned.

SPEAKER_02 0:58

Not guilty.

SPEAKER_01 1:04

I'm John Kelcagney, New England-based criminal defense attorney, and in this episode of my podcast, we're going to provide an overview of legal motions. People always ask, what is a motion? Well, the term motion, used in the legal context, refers to an attorney representing a party asking the court for something. That's all it is. It's simply a request to the court for some form of relief or benefit. And motions may be made verbally or orally in open court by the attorney, or they may be made in writing, which would be obviously pre-drafted, filed with the court, and then ultimately heard or ruled upon by the court at a later date. Whereas an oral motion, you're making it, you're in court, you're making the motion on the spot, and you're likely to get an answer on the spot. You understand the difference? Yeah. So in my view, motions fall into essentially four categories. Category one, we'll call pretrial non-substantive motions. Category two, we'll call pretrial substantive motions. Category three trial motions. And category four post-trial motions. Okay. Let's talk about these individually. All four. Pretrial, non-substantive motions, essentially things that you'd ask the court for during the pretrial phase of a criminal case. And these things may include but are not limited to the following. Say you have a client who's out on bail in Rhode Island. As a standard condition, he or she can't leave the state without permission. You might make a motion for the client to leave the state. For example, you live in East Providence, you shop in Massachusetts. I live in Cranston, I shop in Massachusetts too. A lot of people do. That would require permission to leave the state. Maybe a defendant is in college and is attending a school out of state, going on vacation out of state, is a truck driver and travels from state to state, or is going on a business trip. There are a variety of reasons why someone might need to leave the state of Rhode Island, hence a motion for permission to travel. Say you have a client who's on bail and they want to make a change to their bail conditions. For example, someone's on home confinement as a condition of bail. They've been doing really well for a long time. You want to make a motion to modify the bail, basically taking them off home confinement. Maybe you have someone who's on home uh who's on bail and as a condition has limited or restricted internet access. Maybe you need to make a motion to expand their ability to use the internet because of a new job that they got, or uh they've taken classes online, etc. And this is a non-exhaustive list, but there are so many different things that you might ask the court for during the pretrial phase. Maybe the prosecutor has failed to give you the discovery that you're entitled to under the rules of procedure. You might make a motion to compel the prosecutor from providing you with discovery response. Perhaps there's an area, an item or a location that you want to inspect in preparation of a case. You might make a motion to inspect that area, that item, or that location. For example, the police sees a cell phone from your client and you want to see the cell phone, inspect the contents of the cell phone. You might need to make a motion for that. Say the prosecutor provides you with some discovery, but you know there's more and they haven't given it to you. You've asked nicely, maybe you've sent an email, even a letter, you still haven't gotten it. You can file a motion to compel a more responsive discovery response. These are what I like to refer to as pretrial non-substantive motions. Make sense? Yeah. Pretrial substantive motions are when you're asking the court to exclude an item of evidence or perhaps to dismiss a case. So if the police conduct a search that maybe violates the Fourth Amendment, perhaps they did it without a search warrant, or the search ran a foul of the parameters of the search warrant, or the search warrant itself shouldn't have been issued in the lawyer's estimation. A lawyer might make a motion to suppress the evidence discovered as a result of the search. That would be a pretrial substantive motion. And there's a lot of that sort of motions practice that goes on in a criminal defense lawyer's world. Similarly, if you have a case where a client was interviewed by police and provided a confession or made incriminating statements, maybe those statements were obtained without the client having been advised of his Fifth Amendment Miranda rights. Maybe the police officer who gained the confession made threats or engaged in acts of coercion to get the client to make the admissions. A lawyer might file a motion alleging that the Fifth Amendment was violated, and therefore the statements obtained by police from the defendant should be excluded. That's another example of a pretrial substantive motion. Perhaps you discover that there was a problem in the criminal charging process. Maybe there was an error in the documentation. Maybe the client was charged in a manner that violates time restrictions on bringing a criminal case, known as the statute of limitations. Maybe there was a problem with the makeup of the grand jury that voted for the indictment. Maybe there's no probable cause or real reason to believe the client committed the crime based on facts and evidence. You might file a motion to dismiss charges. That would also be considered a pretrial substantive motion. Again, these are examples that we're giving today to educate the listener, but they're non-exhaustive lists. Sounds like it sounds like there's a lot of variations, variables. Absolutely. They don't just hire the lawyer that with the nicest suit and the coolest office who seems to be able to talk the talk, but they hire a lawyer who has true, deep-rooted experience gained over time. These are the lawyers that are able to get true results in the criminal justice system.

SPEAKER_02 8:47

Okay.

SPEAKER_01 8:48

But sticking with motions, trial motions. A third. Yep. When a case goes to trial, a lawyer is going to be required to file trial motions. Not required, but given an opportunity. And this is where you might ask the judge to exclude certain items of evidence, which might not be relevant to the charges or issues to be put to the judge or jury at trial. Or even though relevant or material to the issues at trial might be so overly prejudicial that it might otherwise undermine somebody's right to a fair trial. Perhaps certain items of evidence that the lawyer might seek to exclude with a trial motion would be things that wouldn't otherwise be admissible in accordance with what are known as the rules of evidence, which govern the trial procedure. Sometimes it's better to file a motion targeting an item you know is not admissible and getting a pretrial ruling so that you and the other side, the prosecution, knows that piece of evidence is not coming in or that testimony from the witness is not going to be allowed, so that everyone has advanced notice of it rather than hoping everyone's gonna follow the rules of evidence and not try to offer or inject this sort of evidence uh into the trial in front of a jury. Here's a classic example. Uh let's suppose that you have a defendant who's on trial for a domestic violence offense, and he's accused of striking his girlfriend on a particular date, May 1st, 2025. And it just so happens that the defendant did similar things on prior occasions. Whether or not he was charged with them, the girl alleges that he struck her on prior occasions. As a defense lawyer, I want to file a motion to prohibit her from testifying about those prior things because he's only been charged with the single May 1st, 2000, what did I say, 25 event, and that's the issue for the jury to decide. If the jury hears that the defendant did this on multiple occasions in the past, it might cloud their judgment with regard to deciding whether or not the current accusation is true. So this would be an example of a trial motion where I'd want to exclude some bad evidence. I've got a trial coming up pretty soon. A police officer. He's accused of a sexual assault. I want to exclude any reference that the defendant is a police officer. I feel as though if the jury learns that, they're going to hold him to a higher standard than they would a regular civilian member of the community. This is a piece of information that I'll want to exclude, and I'll do that with a trial motion. So pretrial substantive motions and trial motions sort of shape the body of evidence that you need to be prepared to deal with going into a trial. Whether that evidence is good or bad, it's important as a defense lawyer and as a former prosecutor that there are no surprises at a trial, that everybody has predictability about what evidence and information is going to be presented and come before the jury so you'll know what you can and can't comment on in your opening statements, what questions you can and can't ask, what items of evidence you can and can't offer, and of course, what comments you can make in your closing remarks. And the way to promote this predictability and minimize trial surprises is with a robust or active motions practice.

SPEAKER_00 12:42

Okay.

SPEAKER_01 12:42

And then there's a fourth one. Yep, those are called post-trial motions. Those only really kick in uh after a trial has occurred. Let's suppose a defendant is found not guilty. You might file a post-trial motion to return their bail money, a post-trial motion to return the property that the police seized or confiscated at or near the time of their arrest. If a defendant gets found guilty after trial, you might file a post-trial motion to keep the defendant on bail while they await sentencing. You might file a post-trial motion asking the judge to consider setting aside the jury's verdict and granting them a new trial. The judges have the power to do that under certain circumstances. A lot of times after a trial where there's a guilty verdict, a defense lawyer will file a motion to withdraw, seeking to remove himself from the case, asking that an appeals lawyer come on board. Because after trial, every defendant has the right to an appeal. And often, though not always, but often, the lawyer that handles the appeal is different than the lawyer that handles the trial. So that's an overview of motions. The word motion, a fancy term, simply means a request to the court, whether it be done orally or in writing, pretrial non-substantive, pretrial substantive, trial, and post-trial motions. All right. Hopefully uh we've all learned a little bit more about the options when it comes to the motions. Sounds great. I like these little podcasts. There's short episodes designed to really push information out to our listeners, all aimed with the intent of increasing familiarity with the court system.

SPEAKER_00 14:45

Yeah.

SPEAKER_01 14:45

We'll catch you next time.

SPEAKER_02 14:47

Yes, we will. Not guilty.