Andy
You've been charged with a crime and you're on your way to trial, it's time for your attorney to file some pre-trial motions. What does that mean? Stay tuned. This is attorney Andy Marcantel and attorney Mark j Victor. We're the partners of the Attorneys for Freedom Law Firm with another installment of Fighting the State. How are you doing, mark? It's
Marc
Another great day, brother. Excited about this video, man. Motions practice is so important. You can make or break the case with the motions you file or don't file.
Andy
Yeah, absolutely. And there are different types of pretrial motions. We're going to get into substantive, non-substantive. What does all that mean? We'll get into it in a second, but I think just a basic place to start. What is emotion?
Marc
Yeah, basically a emotion is you're asking the court to do something. That's how we ask the court to do something. I mean, you can make an oral motion, which sometimes we do. You're in court and you're having maybe one of those simple hearings where you show up and the judge just wants to know what's going on. Sometimes called a status conference, a case management conference, a pretrial conference. It's kind of like, Hey, where are we here? What's going on? Hey judge, we're working on this, we're working on that. We're working on the next thing. Sometimes at the end of that, the judge will say, what do you want to do? A judge? We move to continue this same hearing for 30 days. Let's come back in 30 days and regroup and see where we're at. Then that's an oral motion. You're asking the court to do something, but big motions, stuff that really make a difference in the case, you got to put in writing.
Marc
This is sometimes I say a good lawyer has to have many different tools in the toolbox. A lot of people will see somebody in court and they're great orators. They can stand there and make a great argument, speak off the cuff, respond to the arguments in positions of the opponent on the other side, but that's not everything. There are other lawyers who are terrible in court, but when they sit down in front of their computer and they put their wordsmith, they sit down and they put the right words, they research. And so I always say, and I've been hiring lawyers as you know for 30 years now, and it's a real diverse set of skills that you need to be a complete lawyer. And so motions is something that people don't often see because you see the lawyer in court and I've worked with lawyers on death penalty trials, you have to have two separate lawyers.
Marc
These are such big cases and I've worked with lawyers who are really great at trial. They can stand up and command the courtroom and they're great with their arguments and they're very sharp. But man, when it comes to motions, when it comes to sitting down and researching, finding the case, what we do in the law, we look for cases that we analogize to or we distinguish. We say, Hey judge, here's a case. Here's what the higher court said happened. In that case, our case is like that case, and so you should do the same thing here. Or our case is totally different than that case. Just because they did that there doesn't mean we should do it here. That's distinguishing a case. So you have to be able to research. I mean backing up first, you got to be able to spot issues. If you miss the issue, it doesn't matter how good you are in court or how well you research or draft a motion, you got to spot the issue.
Marc
You got to think, huh, this could be a problem. This could be something that could be important in the case. Then you got to research. You got to pull up cases that are authoritative in your jurisdiction, which means if you're in the state of North Carolina, you want cases that are in the North Carolina court. If you are in the federal system, you want a case that is in that circuit and you may pull federal cases in a state case as well as persuasive authority, but at the end of the day, that issue's going to get to a federal court on a federal issue. So it can be very persuasive to say, Hey, we're in the ninth circuit here in Arizona. I know judge, it's is state court matter, but here's what the ninth Circuit says about this federal issue that you are now ruling on. That can be very persuasive.
Marc
And then you have cases, you're in North Carolina and it's a Michigan case and you say, look, I know it's not binding on the court, but here's the reasoning that the Michigan Court used and you want to put all this down in emotion and how you structure the motion. You want to say, here are the facts. That can be very important too because the way you present the facts to the judge in the motion, you kind of want to put 'em in a light most favorable to your client, but you don't want to take too much liberty here because the other side is going to put their factual situation in there. If you left out important things, then you're going to lose some trust with the judge and if you lose that with the judge, if the judge says like, I can't trust this guy. He misrepresented the facts or he left important things out, I don't trust it.
Marc
When this lawyer says something, you've really hurt yourself as a lawyer. So you put out the facts section in his good, a light as you can, minimizing the stuff that hurts you and really highlighting the stuff that helps you in that fact section. And then you say, look, here's what we want you to do, judge, and then here's the memorandum of points and authorities, which is essentially the cases you want to say, look, here's a case, here's what happened. This is called briefing a case. Here's what happened in that case and here's why our situation is very similar to that situation and why you should do the thing that it is we are asking you to
Andy
Do. Yeah, and you mentioned this diversity of skills that we have to be a good lawyer. You need both the oration skills, the ability to command the courtroom, but also the legal mind to be able to research and write and properly advocate for your client any pleading and a filing with the court. And of course there are many fields of law and there are many lawyers that never set foot inside of a courtroom. Many, many fields of law, you think like tax law or real estate law or contract law, most of those lawyers spend the vast majority of their practice, if not all of it, outside of courtrooms advocating for people in. Now, criminal law is one of those fields of law. There's a couple of fields of law that are known, kind of notorious for these are lawyers who spend a lot of time in courtrooms. Criminal law is definitely one where we're required to be in court a lot, but even amongst criminal lawyers, I think of appellate practice lawyers for example, that don't spend a whole lot of time in courtrooms. They do most of their argument in pleadings,
Marc
But the time those appellate lawyers spend arguing the case, I recently argued one at the Ninth Circuit Court of appeals and we're supposed to have 15 minutes, I think we wound up 25 minutes, which is extraordinary in a federal appellate case and every minute is sacred there. So yeah, there are different skill sets and it's really important to make sure that your lawyer is sharp in each of these areas, right? Because you might be great in court, but if you missed an important issue and you could have excluded some important evidence that now is coming in and that didn't have to come in, you just blew the whole case. I don't care how good you are in court, you failed to file a really critical motion. Now maybe you'll be redeemed in an appellate type of a proceeding or a post-conviction type of a proceeding with an ineffective assistance of counsel argument.
Marc
We bring these as well against other lawyers and sometimes we call 'em, say, Hey, why didn't you file this or that? You missed an important motion. And sometimes they'll have a good reason and other times they won't. It'll just be, I guess I kind of missed that issue. And if you can show that a reasonable lawyer would have filed this motion and if it had been filed, it would've made a difference. In this case, you've established what we call the Strickland versus Washington standard for ineffective assistance of counsel and you might get a do over on the case.
Andy
And I think really importantly with this entire series, one of the things that we've been trying to do as we walk our viewers through the justice system in each stage is kind of tell 'em how it is, how it actually is to practice law in the justice system. And part of that is kind of disillusioning them of maybe things they've seen on tv, maybe things they've seen in movies. And part of that goes to answering the questions, why do you file these motions pretrial, right? The conception is apparently that every case goes to trial or most cases go to trial and the trials are very dramatic with surprise witnesses and surprise evidence and stuff that nobody knew coming. And there's gasps in the courtroom as things are revealed. That is not how the vast majority of cases shake out. And the reason for that is because in America we want to discourage what we might call trial by ambush.
Andy
You guys have heard us talking about this before and the idea is that things need to comport with the due process rights of our client. They have rights to know what charges they're facing, what the state's evidence is, what the state's case is going to look like, and the large role of pretrial motions is to parse out that information well ahead of time of trial. I always tell clients that if you're going to trial and your attorney is surprised by anything really that is a failing on your attorney's part. It should be boring business as usual for both sides if they're competent and they know what the evidence is going to show. So pretrial motions are really designed to parse out what information is going to be coming into the trial, what information is going to be excluded, never allowed to get to the jury, and things of that nature. Yeah,
Marc
This is really good. What I'd call public policy, right, of trying to avoid trial by ambush is really important because the decisions that defendants people who are accused of crimes, the decisions that they have to make during the course of a trial, which really the big one, do I accept a plea or do I roll the dice and go to trial? The more information you can get to that defendant to make an educated decision the better. And oftentimes motions are going to be the determining factor here. In the last video we talked about having a traffic stop and the trunk is searched and there's a dead body with the bloody knife, with the fingerprints to connect to the driver of the car inside. The resolution of that motion's going to resolve the case, right? More than likely, I mean you could start adding facts, right?
Marc
There are eyewitnesses to the killing as well and they're going to come in and speak or something like that, but without those added facts, that's the whole case. And so you've got to file the motion to exclude evidence if that motion loses you're dead, if that motion wins, they're dead. That's how that kind of a motion goes, and that's a big role of the dice as well. And so you really got to spend some time on the motion here. You don't want to just file a motion to suppress and not have all of the cases there because the client's got to make a decision here as well, right? If you have a skilled criminal defense attorney on that issue, you're going to talk really carefully about how even to raise that issue, you might just go ahead and file it. You might just talk to the prosecutor about say, Hey, there is this motion out there, I could file it.
Marc
You might file it and then move to hold it in abeyance and say, look, judge, we're preserving the issue. We don't want you to rule on it yet because we want the prosecutor to take a good hard look at the cases that we've cited. And so you got to give the defendant the information. And what they want to know here is are we going to win this thing? Are we going to lose this thing? And you want to be able to say, well, look, here's a case where the court said the evidence had to be suppressed, and here's what happened here was the stop here was the search. Our argument is to make the case that the situation here is just like this situation. Now let me tell you the argument it is. Lemme tell you the argument it isn't and what I think a judge might do with that.
Marc
So you really want to talk about that. And so if the judge rules on it, you've lost all negotiation because the judge has ruled one way or the other. That's the end. And so oftentimes we will spend a lot of time on that motion to make sure every possible case that helps us is in that motion and is fully briefed. Some cases you just cite and you move on, here's a proposition, here's the case, move on. Others, you want to really say, look, this case sometimes we say is on all fours, and what we mean by that is this case is identical. What happened in this case is exactly what happened in our case. We don't want to just cite that case and move on. We want to lay that thing out in excruciating detail.
Andy
Absolutely.
Marc
In this case, judge, officer friendly did X and Y and Z just like he did in our case, our officer unfriendly in our case did the same X and the same Y and the same Z. And here's what the court said and here's why they said it. Here was the logic about what they said. And guess what Judge? That same exact logic applies here. And what you're really saying to the judge is, look, judge, if you rule against us on this motion, what you care about is not being reversed on appeal. You're going to be reversed on appeal here, judge, but most judges are going to follow the law, but they don't like it when they've been reversed on appeal because it shows they blew it. They made the wrong decision. So that's really what you want to convince the judge, especially in a hard case like that.
Marc
We're asking the judge to let somebody who actually committed a murder go free. You better be bringing some really strong evidence on that. So how you lay this thing out in the motion and what kind of detail and also a good lawyer will identify the cases that go against us and you're actually ethically required to do this, to lay out the cases that go in the other direction. So this is a great, the prosecutor's going to go to this case. Here's a case where they didn't suppress the bloody body in the trunk. You want to lay that case out and say, here's what happened in this case. Officer friendly did X, Y, and Z, and officer unfriendly in our case did X and Y but not Z. And the fact that he didn't do Z makes all the difference in the case and here's why we are now distinguishing that case. We're taking the wind out of the sails of the prosecutor's argument before the prosecutor gets to sort of enlighten the judge about it. Yeah.
Andy
First of all, I'm really glad that you did a little throwback there to our last video about negotiations because as we're going through all these different steps in the criminal procedure, they really are all related.
Marc
They are. They're
Andy
Intertwined at the end of the day because a strong motion can make all the difference in negotiations in the last step that we talked about. If a prosecutor honestly believes that your defense attorney has a chance to win a major substantive motion that will throw out basically all of their evidence in their case and end up crashing their case, they're going to be highly incentivized to work with you and play ball and negotiations. But I think that point that you bring up about building credibility by citing adverse precedent is so important. You want to get that issue, you want to be out in front of it. The prosecutor is going to find the case that disagrees with your precedent, your case law that you found if you're researching a case, and we as lawyers research cases all the time with different databases, legal databases that can show all things we put in a keyword, we put in search words, we can put in string sites and it'll show us all kinds of different cases from kinds of different courts that address similar issues as the one that we're arguing in a motion. Well, if you found it, odds are the prosecutor is going to have found it, but even if the prosecutor didn't find the adverse precedent, the judge may know about the adverse precedent. And if you want to lose credibility with the judge, it's you don't cite a known opinion that goes contrary to what you're arguing that the judge knows about that ain't going to go well.
Marc
This is one of the most important points when we teach young lawyers. We almost always have a lawyer in a second or third year posture in law school hanging around our firm, working as a clerk, and one of the early lessons that we really have to instill if you want to work for our law firm, you really got to buy into this. Just like in life in the courtroom, your credibility is everything. If you lose credibility with the judge, they're going to just say, I can't believe this lawyer when this lawyer comes into court. So the last thing you want to do is lose credibility, not just with the judgment but with the prosecutor. So the next time you call up this prosecutor and say, Hey, I think we got an issue in this case, you don't want this prosecutor, I know this guy's full of bs.
Marc
I don't listen. I don't take that seriously. You want the prosecutor when this lawyer tells me there's an issue, there really is an issue. I should take it seriously. So credibility is absolutely indispensable. You cannot be a good criminal defense lawyer or probably any kind of lawyer unless you hold as sacred your credibility, which means like we always talk about acting with high character in everything you do, and so how you present it though and what light you presented, and that's the stuff of good lawyering, right? So we want to put it out there. We want to say it's adverse. If it's too bad for us, then maybe we don't bring the motion because now it's a frivolous motion. However, sometimes we can argue that, look, this case goes against us and it would normally foreclose our issue. However we think the case is wrong.
Marc
Here's why we think it's wrong. We are arguing judge for you to go against this case. Now sometimes if it's an appellate court case or it's a Supreme Court case, the judge will say, look, I don't have the authority to do that, so I'm going to rule against you, but I recognize counsel, why you're putting it out there because you want to preserve that issue. And then if we lose, float it up the chain as an appellate issue to ask the Supreme Court to relook at this issue, maybe it's because other things have changed in the law. Maybe it's because you got a different Supreme Court that originally ruled on that issue, who knows? But you got to act with high character and integrity at all times and every single thing you do because character is one of those things that can take your entire career to build it and build it and build. You can blow it on one frivolous motion
Andy
And then sometimes there is no guiding precedent for those are the best. Those are really fun. They're exciting because you get to make creative arguments. You'll still reference as similar cases as you can possibly find and try to creatively draw common ground between a good ruling, your novel new issue that hasn't been litigated yet. But these are very interesting. We just had a win last week on a new law that came into effect here in Arizona where the case was located, that it was based on a voter initiative. They put this voter initiative into play and oftentimes at these voter initiative laws, they're kind of poorly drafted, they're not super clear. The language is a little squishy or vague. And so we filed a motion asking the court to do something that would've benefited our client under that new law that was made by the voters.
Andy
And because the language was squishy and strange and because it's a brand new law that just hit the books we researched and there was no precedent that was directly on point with our issue. This is when a good lawyer likes to have a little fun and get creative here. Now we find similar enough cases that while they don't deal with the same issue, they're close enough in character that we can say, look the court and we understand there's a new law. We understand that it's a novel issue, but the court in this similar enough issue in this other case did exactly what we think you should do in this case, judge. And so the prosecutor has to, it's like, oh, okay, well we got to figure this out. And so we had an oral argument and the judge agreed with us. And it's interesting too because when you're in the trial level, the lowest level court before you get to the appellate courts, say, if the judge ruled against us in that motion, we would've had the right to appeal it and asked a panel of judges in the appellate court to take a look at our argument and interpret this novel section of the brand new law.
Andy
And if they had agreed with us, all of a sudden precedent from a higher court has been created to dictate what happens in the lower courts. And those are really, really exciting cases.
Marc
Dude, this was a huge win for you and Brittany on this case. You don't often in a criminal case get to argue First Amendment, get to defend the right to free speech, but we're not the attorneys for fourth amendment rights. We're the attorneys for freedom. And so we fight for all freedoms for all people at all times with no exceptions. And this was one of those rare opportunities which does come up in criminal law. You get to sometimes a criminal law will infringe on somebody's right to free speech. And you and Brittany took this one. This was with Goldwater Institute, was it?
Andy
Yeah, Goldwater sent it. Yeah,
Marc
They asked us because they're a pro-free group and they do all this work and they know we're pro-freedom firms, so they farm cases over to us sometimes.
Andy
Every now and then they'll send us a really interesting one, and we like to take those cases pro bono because as we've said many times, if we like the case and we think it's an important freedom issue that will benefit society in some way, we'll do it just for the freedom of it. I know
Marc
That's a little segue, but we took one off these guys during the Covid times, right? Remember that one very high profile? It was a very high profile. Maybe we could put a link to that video in there, but this was crazy covid restrictions and business owner who didn't want to be the police officer and enforce the crazy covid restrictions and her failure to do that got her charged with a crime and we got to argue the case and defend her, and she was very grateful we got that case dismissed as well. And again, it's the power of bringing a good motion in the case, the power of spotting the issue, researching this thing very carefully and in your situation, a case of first impression we call it, which is we don't have a case that is on point with this, and so we have to argue for the judge to make the right decision here, and this was a super big one for you guys.
Marc
It was a huge win. I know Goldwater's going to be talking about it as well to their group. And so yeah, both of those, we did pro bono and because freedom is more important than money. That's right. It doesn't mean we take every case that is freedom related for free, but we still have to make a profit. We're still capitalists. We got to make payroll and things like that, but if we can take the right case that's a pro-freedom issue and do that either for free as pro bono as we did in those two cases or reduce fee, we do reduce fees all the time. Now we're talking sort of non a OR cases. That's a separate program our firm does, but I think some of our A OR clients forget, we're a full working law firm that has been in business over 27 years now, and we do a lot of pro-free cases, so we sometimes will reduce hourly rates.
Marc
We also did this on a case in Hawaii during Covid where we sued the governor In that case, that was fun as well. It's not the first time I've sued a governor, so I love going after the state and fighting the state that hence the name of this whole series. Absolutely. But anyways, yeah, back to motions. These two cases are great examples of how motion practice can really make a huge difference and people, I think undervalue motions and how motion practice works. You don't see it. It's not something you see on tv, it's not something you see at trial. It's the lawyer working late at night in front of the computer with cases all over the place. You got cases everywhere and stuff highlighted and you're bringing quotes into the brief that you're putting in the motion and it's really fun stuff. I love it. I love it when my desk is covered with all these different cases from all these different places and I'm crafting the argument, where do I drop this quote in? Where do I drop this case in? Make decisions about what cases should go in and what cases should not go in. And we should also talk a little bit about just the procedure, what happens after you file the motion.
Andy
We'll talk about the procedure in a second, but I think you're on the subject of things that people don't see on tv. I think at a good place to kind of mention something that it's undervalued as you put it, which is yes, when you file motions, a huge advantage can be created for our clients if there's good issues and they're likely to succeed and the prosecutor believes they're likely to succeed and hurt the state's case. Obviously those types of things, their benefits of filing motions, but there's another more practical real world benefit to filing motions, which is something we might refer to as the pain in the ass factor for the prosecutor, which is that if we file a whole bunch of motions just practically in the real world that prosecutor understands if they got to respond to 'em, that's going to take a lot of time and a lot of resources.
Andy
And while the decisions of the justice system should be made on the merits of the arguments only, we are certainly not above when advocating for a client getting benefits from the fact that we've created a lot of work for the prosecutor, obviously we wouldn't file a motion for a meritless reason, but this is one more reason why practically it's important for a good attorney to spot as many issues in as many colorable issues as they possibly can because the prosecutor doesn't want to take the time to respond to all of that if they could just get rid of the case with something like a plea.
Marc
Yeah, this is a great point and I'm glad you brought it up because people have to really understand the context, and I think if you're not working in the system, you may not understand the context here. So just to fill in a little context, there's a group we call the courtroom work group and they handle 92% of the cases in the system. It may be a little different state to state, but we're talking about the judge, we're talking about the prosecutor, and we're talking about the public defender. Oftentimes, public defenders are assigned to the same courtroom or the same judge and something, so they're all buried in work. The system is completely overloaded in drowning at all times. At all times. All of these criminal justice systems in every state, they are buried with work. You also have to remember that the prosecutor is on a salary.
Marc
They don't make more money if they work harder. Same with the public defender and same with the judges. So there is one interest that the three of them share together, move in that case efficiency move. In that case, we got to move the case, and this is why, just to pause on public defenders for a moment, there's some excellent lawyers at the public defender's office and this is what I tell them that I say about them and they say, good, mark, because this is fair, which is I think the percentage of good lawyers and bad lawyers in the public defender's office is probably about the same as the percentage of good and bad lawyers in the private bar. The big difference is the volume of cases. The public defender shows up in the morning and some supervisor or paralegal or something presumably walks in the office and drops a big pile and says, here's your new cases for the week or whatever, and they have no control over this.
Marc
When somebody comes into our office, we can say, pass, we don't have to take, we can say, sorry, we're too busy. We're going to refer it somewhere else, or we can accept it. We could reduce the fee. We have lots of different options. I can hire another lawyer. We can do all kinds of things. When you're a public defender, you don't have that sort of safety valve flowing the cases. Well, the same is true with the prosecutor. Most of these low level prosecutors, right? Somebody walks in and drops cases on their desk, right? There's usually a charging unit. They charge the case and then it goes out to another unit that does the case, and the same with the judge. Hey, somebody assigned cases to your docket. So they're all trying to move cases. So the value of taking up the prosecutor's time is critically important.
Marc
You can't understand the pressure points of the system properly unless you understand the value of time. So what we're essentially saying to the prosecutor here is when they see our name on the notice of appearance, when they get that notice of appearance and they see, oh, the defendant has retained the attorney's for freedom law firm, they have to go, oh, this thing is going to take up a lot of time. Those guys file a lot of motions. Some of 'em are just crazy motions for everything, and this is going to take a bunch of their time. The thing that's important to understand is the prosecutor has the power to make this case go away at any time, and we want to lay that out there for them, which is essentially, look, here's a bunch of motions. Think a bunch of time is going to be wasted on your calendar. You're going to sit down because a lot of these prosecutors draft their own responses to these motions, and so here's how you can make it go away, Mr. Prosecutor or Miss Prosecutor, here's a plea offer our client would take. You don't even have to respond to these motions. Give us this plea offer and we'll gladly go away. Yeah, absolutely. You got to understand that to understand motion practice.
Andy
I'm glad we took that little detour there to talk about that because that's just a real world concern that they don't teach you in law school. You can't learn it in a book. It's just something you get from practicing a long time and the value of time and using it as another tool in your toolbox. So
Marc
Important. We'll come back to this when we talk about sentencing issues, right? Because the judge has the same pressure and there are a lot of times we essentially say to the judge, look, we're going to have this big pre-sentence hearing. We're going to take up a lot of your time, unless of course you agree that I should get this particular sentence, then we don't need to call all those witness. So same idea,
Andy
Stay tuned for that because that's an important tactic.
Marc
Same idea applied to the judge at sentencing as now applied to the prosecutor pretrial in motions practice.
Andy
Alright, so back to the procedure of pretrial motions practice. It can be broken down like this in most jurisdictions, the moving party, so the party that is asking the court to do something files a motion. This can be actually done orally as you mentioned, in some less substantive, less meaty if it's just something more along the line of a routine request. But if you're asking for a big thing, you need to brief the motion and the moving party files the motion, then the opposing party has a chance to respond. What they do in their response is they're challenging the points that you laid out in your motion. Perhaps as we referenced earlier, they're laying out some adverse case law saying, Hey judge, you should deny the request that the moving party made because these cases say that you should or that you have to. And then usually jurisdictions allow the original moving party to file a reply, which is kind of a short retort to the opposing party's response.
Andy
So it goes back and forth a total of two times. Then at that point, the judge has all the pleadings and the judge has a couple of options. The judge could first just simply rule on the pleadings. In other words, I've seen everything I need to see from this. I'm convinced to rule one way or another, and so I will either or deny the motion based on all the things that I see on the paper in front of me, but then there's another option. Maybe the judge isn't convinced. Maybe the judge sees that there's good arguments on both sides and wants some clarification on some points, or even wants the parties to address some case law that the judge is aware about that the parties didn't address. That happens too. And so when there's situations like that, the judge will say, all right, time to set an oral argument on this motion.
Andy
And they will set it as a hearing where they'll say, all right, everybody needs to come into court, the moving party, the opposing party, the defendant, everybody come into court and convince me about whether or not I should grant this motion. And there are different types of oral arguments. There are oral arguments that are based solely on the pleadings where you come and you just argue based on what's in the pleadings. But then there are these types of arguments called evidentiary hearings, and what those are is maybe you want to present some evidence to the court in support of your motion. How do we do this? Well, oftentimes through things like expert testimony where we might put an expert on the stand who has some knowledge about the arguments that we made in our motion and has some things to say about the facts of the case that would support the granting of our motion. Evidentiary hearings are very interesting because they're kind of like little mini trials where both sides can put up witnesses and evidence that are relevant to the motions, and those witnesses that are being put up are going to be sworn in and subject to cross-examination by the other side. So it's kind of a little mini trial on the question of whether the court should grant this particular motion.
Marc
Do you remember Pavlov had a dog and the experiment was we ring a bell and every time we ring the bell he gets a treat and he learns that once the bell is wrong, he gets excited. He starts salivating when oral argument gets granted, dude, I'm like, Pavlov's dog. It's just as you talking about oral argument getting granted. I could feel myself already getting excited to charge into. That's how it is in our firm. We file a motion and the judge granted oral argument. That's exciting, right? Because when you are going to court on an oral argument day, that's a great day. As a lawyer, you get to do some of the stuff that we really love to do here, which is go into court and argue something that also signals to us the judge is thinking about granting this because the judge could have just denied it.
Marc
So if you get oral argument on a motion that's telling us this judge is thinking about it, and what that usually means is the judge has got some questions. And so usually they'll start by saying, okay, counsel, you're the moving party. Here's what you got. What do you have to tell me about this? Convince me. Convince me. Other times the judge will say, counsel, the reason I set this oral argument is because I read this case and I'm thinking about this, but I'm also thinking about that. That's the issue I'm interested in. Start talking exactly. You got to really listen to what the judge is wanting to hear, right? Because we come prepared when there's oral argument. If the judge just says, Hey, start talking. I want to make sure here are the things I'm saying, but if the judge instead says, I'm interested in this issue, then pivot from everything you were going to say, this is now the issue. Get on that issue right there.
Andy
Yeah, we talk about being nimble as criminal defenses attorneys. This goes perfectly in that category because savvy judges will come in and they will tell you, here's the thing I'm concerned about, by the way, this other issue, I agree with you counsel, no reason to convince me any further on that, but here's where I'm having my hangup lawyers I've seen in court not pick up on this and waste their time in the oral argument on something the judge has already told him, don't spend any time on that. I agree with you. I grant you that convince me of this. And it's just that's not good lawyering, not good lawyer. So yeah, you need to be able to adapt to what the judge is telling you.
Marc
And so when we file these motions, especially in the bigger issues, we can actually ask in the caption and say, oral argument requested or evidentiary hearing requested, we usually put that in there and bold it so the judge's judicial assistant or clerk will see that and say, Hey, judge, they're asking for oral argument. Doesn't mean the judge is going to grant it, but man, if you've got an issue you feel strongly about, you definitely want to request an oral argument. And when you get that, that's a great, and that's how I feel. Usually when we get to the closing argument part of trial, this is what we live for. You get to show up and argue, especially if it's a dispositive motion. And I should also say judges don't often rule from the bench on these. Sometimes they do. They say, okay, counsel, I get everything here.
Marc
I'm going to grant it or deny it. But oftentimes if they're thinking about it, that means they're struggling with an issue. So what they'll say at the end of the oral argument, which again goes in a similar way, you laid out the moving party gets to say their piece. The judge of course can ask questions. Then the respondent gets to say their thing, and then usually you get your reply at oral argument. You get the last word because you got the burden of proof. You got to convince that judge by usually preponderance of the evidence that what you are arguing is the correct position. And then oftentimes the judge will say, thank you, counsel. I will take it under advisement.
Andy
Almost always when it's a big substantive motion, right? The judge will say things like, I'm aware of some other case law and I'd like to re-review all the cases that you guys have had. Oftentimes too, they'll say, I'll take an under advisement, but there were some questions that I had for you two parties today who argued the motion and argued against it that you didn't answer to my satisfaction. So I'm ordering both of the parties by 5:00 PM tomorrow to brief this particular case that I don't think was sufficiently argued today, and tell me why that case may affect my ruling.
Marc
So when the judge says, I'll take it under advisement and the gavel hits the wood and the judge walks off, this is a wonderful time to revisit plea negotiations as well. Absolutely. Yep. Because now you go back to the prosecutor and say, look, man, you could lose this thing. The judge has got this. We don't know what the judge is going to rule, so this is an excellent time, and sometimes I am even to go to the judge and say, judge, we're moving to have you hold your ruling because we're negotiating the case right now. The judge is going to love to hear that, right? Because rather than rule on a hard issue that may get that judge reversed the party,
Andy
You have to write a long legal opinion about why they ruled the way they
Marc
Did. Yes, the parties are going to settle. No problem, counsel. We'll hold it in abeyance. This is a great time. So at each of these stages, the careful lawyer will maybe first raise this in a discussion, maybe out even in the hallway, Hey, Mr. Prosecutor or miss prosecutor, there's an issue on this case. I just want to pick your brain or throw it out there and get your thoughts on it. Sometimes that's enough to grease the rails. They say, okay, I'll go back and look at the police report and maybe you got a real issue here. Sometimes you got to draft up the motion. Sometimes we don't file it, right? Instead of filing it, we just send
Andy
A courtesy copy for the prosecutor to peruse,
Marc
And sometimes we put draft right across the front. We'll send it to the person, say, look, we're going to file this, but we don't want to create extra work. We're very sensitive to the time constraints so that we don't want to cause you aggravation. You may get a prosecutor who's very sensitive here and say, you make me work. I'm not making any plea officer. Here's the motion that we're going to otherwise
Andy
File. Give me a sneak peek. Feel free to research the counter arguments and everything before we file it. Take a sneak peek and let us know if you want us to file that or whether you want to offer us something our client can live with.
Marc
We've been very successful on this in the past using this procedure. The other is we file the motion and then ask the court to hold it in abeyance. Another is we file it, they file the response, we file the reply. Judge grant's oral argument. That's a good time to negotiate the case as well. And there are even times in the midst of the oral argument, you can ask the a judge, can we take a brief recess? I want to step out in the hall and talk to the prosecutor. You can make a deal right there on the case. In fact, if this happens at trial as well, sometimes after a witness, you might step out in the hall and say, we'll offer to settle the case right now because something just happened that changed the landscape of what we're looking at. So a good criminal defense lawyer will not miss any of these opportunities to now return to negotiation because at the end of the day, that's why we're filing the motion to get this case resolved.
Marc
Our goal at the 30,000 foot view is to get our client out of the woods of this situation, the most expedient, least annoying. Sometimes I'll say to a client, look, here's the situation. Imagine the justice system is coming for you. Think of the justice system like this big giant Tasmanian monster with one eye, and it's high on crack. It can't be reasoned with, and it wants to eat you. Sometimes I can kind of grease you out a little and I can just distract him and we can run away and we good. Other times, I got to put a little oil on you. He's got a grip on you and we can slide you out. Other times, I got to chop off your arm. I know you want your arm, but I got to chop off your arm to get you away from being eaten by the monster. That's how they should look at this situation. And so while it seems,
Andy
Should we rename this series fighting the big giant meth out Tasmanian monster?
Marc
In a lot of ways, it's
Andy
Like that in a lot of ways. It is,
Marc
Especially when you're dealing with a victimless crime, right? Going back to the marijuana exam, look, mark, all I was doing was smoking weed in my backyard. You're trying to put me in prison. I said, look, you can't reason with this cracked out Tasmanian monster. It's trying to eat you, and they could put you, there are people in prison for this stuff, right? Okay, not so many for possession of marijuana now, but say you had a couple of joints and now they've charged you with sales of marijuana. That's a different situation. Now they're trying to put you in prison. Maybe you've got a couple of p priors in your past or something. You could be looking at prison and you are saying to me, mark, this is ridiculous. You're the attorney for freedom. Tell me it's ridiculous. And I say, it is ridiculous, but I'm dealing with a cracked out Tasmanian monster here.
Marc
It doesn't understand that this is, think of a lot of gun crimes. A lot of these gun crimes are ridiculous. They're victimless gun crimes. The barrel was too short. The barrel was too long. You had an accessory that was strapped on, and technically something is violent. The serial number was scratched out some other crazy little problem. This is stupid. I know it's stupid, but the crazy Tasmanian monster is trying to eat you. We still got to deal with that. If I can distract him over here and throw something shiny up in the air and he drops you and we run off to the side, that's the way we deal with the case. And you got to think about it in those terms. The stakes are high. They're trying to put people in prison. We don't want to miss any opportunity to get any kind of an advantage on getting our client out of the situation.
Andy
Yeah, maybe, and I appreciate the analogy. I remember you telling me that analogy 10 years ago or something like that. I thought it was good. Then maybe our crew can add a picture of the Tasmanian Devil from Looney Tunes looking scary, but different prosecutors are capable of being reasoned with two different capacities, right? That's right. We can't broad brush everybody in the state as we call balls and strikes, but the prosecutor also has the duty to uphold what the legislature says is the law. And so many times with prosecutors when we're having these conversations and saying, look, this is just wrong. I mean, yes, we understand it's law, but it's just wrong. It's immoral. They will correctly say, well, that's not a legal argument. Yeah, it's true. It's more of a mitigation argument. It's more of like, do the right thing, do justice. But a lot of prosecutors passed the buck over to the legislature.
Andy
They say blame the legislature. They're the ones who made the laws so harsh here. We're just following orders. We're just doing our job. So yeah, oftentimes you are dealing with something that's not willing or capable of being reasoned with. Okay, I think with the last few minutes of our time here, let's just talk about a couple of different types of motions. We'll go through the list pretty quick and say a few things about it. I should mention this is definitely a non exhaustive list. The list is literally endless because you can ask the court to do anything if you have legal grounds to do so. But I've broken this list down. Mark, two different types of motions that you would file, pretrial ones that we might call substantive motions and ones that we might call non-substantive motions. And what do I mean by that? Substantive means that it has to do with the substance of the case.
Andy
It's us actually talking about the merits or the facts of the case or something that's actually going on in the case that could affect the outcome of the case because it has to do with the subject matter. While non-substantive motions, oftentimes they're procedural. They're things that we have to file. There are things that have to do with court dates and scheduling and things like that. So let's hit the non substantive motions first. Things like motions to continue. You talked about that earlier. A motion to continue might be filed pretrial. If we get to a court date and we haven't received all the evidence yet, sorry judge, we're still waiting on the state to disclose this, that, or the next thing. We'd like this court to continue it for 30 days so we have a chance to get that evidence and we can comport with the due process rights that our client has. Another thing might be we're still working on setting up interviews and we really need to talk to this officer or this witness or this expert, but their schedule just hasn't allowed it yet. Judge, we need more time. We need to continue. Things like that could be the basis of a motion to continue.
Marc
Maybe we did the interview, we found out there's a great motion to suppress. We want to continue the trial because that suppression motion is going to resolve the case. So yeah, motions to continue. Virtually anything are very, very common in the criminal justice
Andy
System. Another one you've heard us talk about before, if you've watched this series, which is a motion to modify release conditions, you remember way back to one of those early episodes where we were talking about pretrial release. In other words, what are the rules going to be while the case is pending? This would go into the category of non-substantive motions where we're asking the court to allow some leniency or change the rules for our client of what they have to do while they're out on release. This could be asking the court to reduce their bond or let them out of jail or lower their level of supervision with pretrial services. Take an
Marc
Ankle monitor off, change a curfew time, let them live somewhere else, something. Let them travel out of state for something. Those kinds of motions are really common,
Andy
And obviously this is non substantive. It doesn't have to do with the outcome of their case or the facts of their case. And oftentimes, as we talked about, when people come into this office or maybe they start the case in custody, the main thing they want is to get out of custody. But we always have to explain to them, yes, we want you out of custody too. But that's a short-term win, right? It's a short-term win to get you released from custody with the criminal case still pending. That's the substantive long-term win. So that's non substantive. Things like motions to allow travel. Most jurisdictions will say, if you're charged with a crime, you can't leave the jurisdiction without permission. No problem. We can file
Marc
That for someone in the family's getting married in another state, something like that.
Andy
Marriage, funeral, even vacations, things like that. That's right. Courts will allow within reason motion for change of venue. This is an interesting one. The argument here is judge, my client, because of maybe the high profile nature of this case, my client just can't get a fair trial in this particular jurisdiction. We're asking the court to boot it to a different jurisdiction, and
Marc
This is the one that we think should have been filed in the Kayla Giles case. That was a pretty high profile case in a small Podunk little area where everybody knew everybody and her lawyer who she had to hire did not file a motion for change of venue. And that very issue right now is being litigated on appeal for ineffective assistance of counsel.
Andy
Another type of non-substantive motion that I have here is a motion to disqualify the prosecutor or the judge for a conflict of interest. So this is an ethical issue. This is us saying this prosecutor's office has some connection in some way that would disqualify them from objectively doing their duty in a reasonable manner. That comports with the ethics rules. I actually had to recently file a notice of potential conflict on a judge who, as it turns out, knew my client from some sort of a social gathering. So I just wanted to put the court on notice of that. Now, just because they may have known each other or encountered each other at some point, doesn't necessarily mean that there's going to be disqualified or that there's a conflict, but conflicts can be created for all kinds of reasons. Maybe the judge or the prosecutor are personally involved in something that your client is being charged with. You could imagine if you have a client who's in a white collar case who's involved with a certain business, and then it turns out that the judge has a certain amount of stocks or shares in that business or has been seen promoting that business, that could give rise to a conflict. So once again, non substantive, but very important. Yeah.
Marc
One of the things for the judge's calculation here is not just is there a conflict, but is there an appearance of a conflict? There might not be a real conflict, but because you're dealing with the judge in the case, and it's so important to appear impartial for the public, we are trying to run a clean justice system here, and if it even looks like the judge is in a conflict position, the judge should recuse and put a different judge on the case.
Andy
And so those are just some examples of some non substantive motions. Now, let's talk about some more substantive motions. We've referenced a few of these already. A motion to suppress. That's where you're saying, Hey, judge, they obtained some evidence in violation of the law, in violation of my client's constitutional rights under the state or federal constitution, and we're asking the court to punish the state and suppress the evidence. Another example, similar is a motion in limine. That's when we're talking to the court about what can and can't be presented to the jury at trial. So motions in limine follow things like evidentiary rules and procedural rules basically saying, Hey, judge, the rules of evidence, don't allow the prosecutor to talk about this, or The rules of evidence do allow for us to talk about this. Or perhaps it's a procedural motion in limine where you're basically saying, Hey, judge, they missed their deadline to disclose this piece of evidence. We're asking the courts to keep that out. So motions in limine are just motions that determine what can can't be talked about at trial.
Marc
Yeah. Motions in limine, you and I have struggled over some of these during our time representing people because the thing about the motion in limine that's so interesting is you don't have to file this thing pretrial. You might wait until the middle of the trial in the issue actually comes up right there, and there can be reasons why. A, you want to get it resolved before trial because whether that evidence comes in or not at trial is going to make all the difference to the case. And you want to know right now so you can plan your defense accordingly. Or B, maybe you don't want to alert the prosecutor to this problem. And in the middle of the prosecutor's case, do you want to stand up and say, objection, judge, may we approach? And the judge says Yes, and you go to the side bar, the judge, we got a real problem and this shouldn't come in and here's why we're worried about it, blah, blah, blah, blah, blah.
Marc
And if the judge says, I agree with you, counsel. Now the prosecutor's in kind of a mess, right? Because they got to, as they're walking back from the judge's bench to their counsel table, they rethink how to present their case. And sometimes as a strategy matter, you prefer to raise it right there. So you really got to think that through, you raise that issue, you make it an issue prior to trial and you might prefer to make it an issue in the midst of the trial. So there's a lot of strategy that goes into that decision as well.
Andy
Absolutely. Some more substantive motion examples say that the state is dragging their feet on giving you evidence that your client is constitutionally or procedurally entitled to. You might get cranky with the prosecutor and get the court involved. We call this a motion to compel. A motion to compel the production of evidence. Basically saying, Hey judge, the state owes me something that they're not giving me in a reasonable or timely fashion. I'm asking the court to get involved and order them to get off their butt and give me this evidence. And
Marc
These could be fun motions too. And for this reason, we have our paralegals instructed to every time we make a request, whether it's a phone call or an email or whatever it is, we want that very clearly listed in the notes. So when we go in to argue that motion to compel, because the judge always wants to know, and again, this is about credibility, right? And being reasonable. If you start out with a motion to compel before you've even asked the prosecutor, the judge is going to look at you and say, come on, you got to make the request first. But if you can stand up in court and say, judge, I just want to give you some history here on this day we called on this day, we called on this day, we followed up with an email. On this day we sent a letter, no response.
Marc
Judge, we're sorry, but we got no recourse other than to come here and ask you to cut an order. The other thing is these can be intention with the right to a speedy trial because in some cases imagine A DUI and there's some strange drug on board, and now they're dealing with the labs, not alcohol, it's not weed, it's some obscure drug and some weird lab out of state is backed up and the months are dragging by and they want to keep continuing and say, look, judge, we're moving to compel the results. If they don't have this, the case needs to be dismissed because my client is being deprived of their right to a speedy trial. So there can be different reasons for motion to compel. Also, prosecutor, you might say, Hey prosecutor, could you please give us this? And they say, we don't have to give you that.
Marc
We're not giving you that, or we don't have it. Well, yeah, you could get it a lot easier than we could get it. All you got to do is ask the police officer to do so and so, such and such. I'm not going to do that. You get it yourself, counsel. Okay, that could be a motion to compel, which could show the prosecutor being unreasonable and maybe get the judge more on your side. Judge, we wish we didn't have to do this. I've asked, here's the rule. It says they should provide it. They're not providing it. And when the judge looks over to the prosecutor says, really? Do you really want me to cut an order to tell you to do what you're required to do under the rules? That's a good day for us in court as well.
Andy
Absolutely. And actually on one of Emma's cases, she just had to file one of these earlier this week. And how the judge handled it is, and by the way, Emma had asked this particular prosecutor for this evidence for a period of a couple of months, and there was no progress on it whatsoever. So within the bounds of professionalism, she tried to avoid having to get the court to scold the state. But it finally got to that point and the judge's response was to set a deadline and say, Hey, state, you got two weeks, you got two weeks to produce it. And of course, if they don't produce it in that period of time, we're going to have other recourses. We'll be able to go back to some of these other pretrial motions to punish the state for not complying with those deadlines and due process rights and everything like that.
Andy
So it all intertwines together. A couple more examples of substantive motions. You might have a motion to remand. A motion to remand is when you say, Hey judge, there's a problem with how this case was presented to the grand jury. So if you have a case that started out with an indictment by grand jury, which many serious cases do depending on jurisdiction you're in, there are certain rules in every jurisdiction about what the prosecutor needs to do and what they are and aren't allowed to present to a grand jury. And prosecutors screw these rules up on a pretty regular basis. Unfortunately, not all defense attorneys carefully scrutinize the grand jury presentation, but we do in every single felony case that we have.
Marc
Yeah, you and I once got a homicide case thrown out. We did on this very issue. We did. So rather than get into that, these can be important motions and I think a big reason that some defense lawyers don't pursue these, you got to do 'em quick, usually right at the beginning of the case. Sometimes it can be hard to get that transcript and you got to review it. You can't challenge it and say, Hey, they just made a mistake on their judgment, but something about the way it was presented. But these can be, again, very fruitful areas to even entice the prosecutor into a negotiated deal. Sometimes we have these pending and they say, ah, I'm going to have to represent this case. How about instead of that, counsel, I give you this plea go away. So that can be a fertile area as well.
Andy
Another type of motion is say we have a really important witness that we want to interview, that both sides agree need to be interview or that one side or another really wants, but they're not being compliant. They're refusing to give an interview. They're not willing to come in and talk. They want nothing to do with this crazy criminal proceeding that's going on. Well, we can ask the court to compel them to come in with something called a motion for deposition.
Marc
Yeah. I'm involved in a case right now where important witness has died and prosecutor never moved to do a deposition. And so there's some litigation going on right there, but these can be very important issues. And that's right. You get an important witness who is going to pass away. You better get a deposition on the books right there, which means the other side needs to be present and the witness needs to be subject to cross-examination. Otherwise, you risk losing that testimony forever. And if that's important testimony, you just made a big mistake because you didn't move for a deposition.
Andy
Yeah. Last thing I'll mention here is that it is possible to file a motion to dismiss a criminal case as a pretrial motion, but it's very rare, very rare that a motion to dismiss is appropriate in a criminal case. And the reason is is because these are generally regarded as questions for a jury. This is a question for at trial. The judge is not the fact finder, right? The judge is supposed to be the neutral party. So to simply say, Hey, judge, there's not enough evidence here to convict my client. The answer from the judge is typically to that, sorry, that's not my role to decide. That's a jury's role to decide,
Marc
Or it was already decided at a preliminary hearing or grand jury. That was the point of that hearing. Now we're past that. It's a jury question at this
Andy
Point. Yeah, whether or not there's enough beyond a reasonable doubt to sustain the conviction here. Sorry, counsel, that's not my role. So that wouldn't be an appropriate saying. Insufficiency of the evidence is not an appropriate motion to dismiss, but what would be an appropriate motion to dismiss is if the complaint or indictment on its face is deficient. Do you want to break that down, mark?
Marc
Yeah. I mean, the purpose of the complaint is to give notice. You have a due process, right? To know exactly what it is you're being charged with, and sometimes we bring a motion to get more information there as well and say, Hey, we need more definite statement about exactly what it is. My client is charged. Sometimes, for example, they may say, you're charged with assault. Okay, well, there are different varieties of assault, there are different theories. Which theory is it? And so you can always bring emotion on that point as well.
Andy
Yeah, absolutely. Okay, and then I have one more thing on my list here that you asked me to put on there, and I think the point of this, and remember everybody, this is a very, very much a non-exhaustive list. There are any number of things you could request the court to do. If you don't request it, you don't get it. You have to do it within reason. It has to be based in law or fact or practicality or due process or justice. But to illustrate the point that you can ask the court for anything with these pretrial motions, you had a pretty funny story.
Marc
Yeah, man. I once filed a successful motion for haircut because my client was in custody and we were going to go to trial, and they didn't give him a haircut. They thought they'd just get away with letting him look sloppy. And so I filed a motion for a court order to order the jail to give my guy a haircut. I've also filed motions to have the sheriff's deputies in the courtroom during trial stand far away, so my guy doesn't look like a threat or to unshackle my guy or for clothing or things like that. I think the point of this is essentially you can ask the court for anything pretty much within reason that you want, and the judge will make a ruling on that. Now, if you ask for something ridiculous, you lose credibility with the judge. But I was very serious about that motion and the judge granted it and it happened.
Marc
So if something needs to be done a certain way, I would always say Err on the side of filing a motion. Because failure to file a motion on appeal is going to be seen as what we call waiver. Right? If you could have brought the issue to the judge's attention at the trial or prior to the trial and you didn't do that, you have deprived the judge of an opportunity to fix that, and the court of appeals is going to say, you waived that issue. You can't now raise it for the first time on appeal. So when in doubt, file the
Andy
Motion. I guess to bring up one more funny example as an anecdote, because you guys told us you like our little anecdotes. One of your antics that I like, maybe it was eight, nine years ago. I remember you filed a motion for cake. Do you want to tell the story about your motion for cake, mark?
Marc
Yes. The judge set a hearing on the Marine Corps birthday November 10th, and I just thought that you should be closed on the Marine. It should be a federal holiday as far as I'm concerned. But we had a hearing for the Marine Corps birthday, and I filed a motion for cake because I wanted to bring in a birthday cake to celebrate the Marine Corps birthday and have everybody in the courtroom celebrate the Marine Corps birthday. The judge granted that motion and I was allowed to walk in and bring this big sheet cake into the
Andy
Courtroom. Got it through security,
Marc
Got it through security,
Andy
Ran it through the metal detector.
Marc
They made me run it through, but I got it into the courtroom. I brought plates and forks and stuff, and everybody had cake. I remember standing at the lectern saying, judge, I want to make an oral motion to sing the Marine Corps hymn right now. Judge denied that one. Can't win 'em all. That would've been really fun. There might even be a picture floating around somewhere out there on the internet. I
Andy
Think we requested the audio of that hearing, and I think it's on our YouTube or something like that. If we find it we'll put. I hope that still exists. It was really
Marc
Fun. It was a fun day.
Andy
Yeah, so that just goes to show you these motions are not limited to purely substantive legal issues. You can ask the court anything that the court deems to be appropriate. Both sides get to weigh in on that. Remember, with your motion for cake, there was no opposition from the prosecutor, and I think it's because during your oral argument for it, you even offered to share some with the prosecutor reluctantly that even the prosecutor can have some, I suppose so, yeah. That just goes to show you these motions. You can ask for anything, and if you don't ask for it, you don't get it.
Marc
Dude. Motion for cake sounds pretty good right now. How about a motion to end this video?
Andy
Alright, sounds great. Thank you very much for tuning in today, guys, to this episode of Fighting the State. These are always our most fun videos to make for you. In the meantime, go and check out Attorneys on retainer us to learn all about our Self-defense program and what it can do for you. Check out attorneys for freedom.com to learn all about our law firm and how we represent our clients. If you like this video, make sure to like it, subscribe to the channel, share it with a friend, leave us a comment down below. Until next time, this has been Attorneys Andy Marcantel and Mark j Victor. Peace.
Credit: Marc J. Victor and Andy Marcantel, Attorneys On Retainer
