Posted on October 21, 2015
Common Criminal Defense Motions│Orange County Criminal Defense Attorney
When arrest for a criminal offense, whether it be for felony or misdemeanor charges, there are certain common motions attorneys file in an effort to dismiss the case or prepare for a defense at trial. However, since all cases are different and contain a different set of facts, filing any common motion may not be applicable.
A pitchess motion is brought pursuant to the California landmark case of Pitchess v. Superior Court. If a criminal defendant alleges police misconduct – e.g., perjury, fabrication of evidence, fabrication of probable cause, excessive force, etc., then the court may order the release of the police officers personnel file containing complaints filed made by civilians alleging misconduct. These complaints may be useful in later motions or a defense at trial alleging the police officer(s) is exaggerating the circumstances and/or lying and perhaps calling into question the validity of their testimony.
Speedy Trial Right Violation
A speedy trial right motion is usually made when there has been a substantial delay of a period generally exceeding one year. For example, when criminal charges are filed against a criminal defendant however the defendant is unaware charges have been filed. The delay of over one year causes presumed prejudice affecting a defendant’s ability to fully defend the charges against them in violation of their Due Process right. If a defendant suffers prejudice, the burden will shift to the prosecutor to explain for the unreasonable delay in bringing someone to court.
Set Aside the Information
In felony criminal cases in California, one has the right to a preliminary hearing within 10 court days from their initial arraignment. A preliminary hearing is a probable cause determination on whether or not sufficient evidence exists to maintain the charges against the accused. The burden imposed on the prosecutor at a preliminary hearing is the preponderance of the evidence versus the higher standard of beyond a reasonable doubt. A motion to set aside the information is made pursuant to California Penal Code § 995 in which the defendant alleges that there was insufficient evidence deduced at the hearing to hold the defendant to answer for the charges. Specifically, the prosecutor did not prove a requisite element of the offense in which the accused is charged. For instance, if one is charged with transportation of a controlled substance and the prosecutor produces no evidence regarding whether the defendant’s vehicle moved, even slightly, then the information is not warranted by sufficient evidence and the case will be dismissed.
A motion to suppress evidence is brought under California Penal Code § 1538.5 alleging the police officers illegally obtained evidence in violation of your Fourth Amendment right of the United States Constitution. These motions can allege single or numerous violations. For instance, contesting search of seizure issues, or contesting the validity of a search warrant. For example, if you’re detained for an unreasonable prolonged period, the detention could turn into a defacto arrest absent the support of probable cause. In that instance, the court will deem the arrest unlawful and anything stemming from the unlawful arrest shall be suppressed – i.e., the evidence will be deemed inadmissible at trial. Additionally, if the evidence is dispositive of the case, more likely than not, the prosecutor cannot proceed without the evidence and therefore the case will be dismissed.
According to the landmark case of Miranda v. Arizona, police officers are not required to admonish a suspect of their Miranda rights unless a suspect is subjected to “custodial interrogation.” Specifically, a suspect must be in custody – i.e., custody meaning that a reasonable person would not feel free to leave. The term custody does not require one to be placed in handcuffs or in a jail cell. Additionally, a suspect must be subjected to interrogation – i.e., a suspect is questioned by law enforcement reasonably likely to elicit an incriminating response. If those two elements are met, police officers will then be required to admonish a criminal suspect of their right to remain silent. In the event law enforcement fails to admonish a suspect of their Miranda warnings, or a suspects statements were the product of police coercion beyond a suspect’s free will, then the statements shall be suppressed. Criminal defense attorneys file Miranda violation motions to suppress their client’s statements so it cannot be used against them in court. Most criminal cases in Los Angeles are substantially supported with a defendant’s statements, thus by suppressing their statements, it may cause the entire case to be dismissed.
A motion to compel discovery is filed when the prosecutor fails to turn over informally requested documents or evidence. The first step before a motion to compel discovery is filed is a defendant, or attorney, must make an informal request. In the event the prosecutor fails to timely turn over evidence, the defense may submit a formal motion and request an evidentiary hearing on the matter or seek sanctions against the prosecutor or perhaps obtain a jury instruction in the event the case proceeds to trial.
Dismiss in the Interests of Justice
A motion to dismiss is governed under California Penal Code § 1385. However, the defense does not have the authority to bring the motion. Instead, only the prosecutor or judge may dismiss the case in the interest of justice. California case law allows a defendant to formally “invite the court to dismiss on its own motion.” Only in extraordinary circumstances does the court dismiss charges against a criminal defendant. But nonetheless, attorneys normally make the attempt to preserve the issue for appellate review.
Contact Us to Schedule a Free Consultation
For more information, or if you have been arrested or accused of a criminal offense, contact an Orange County Criminal Defense Attorney at the Law Offices of John D. Rogers. Call (949) 625-4487 to schedule a free confidential consultation concerning your rights and defenses.