After the preliminary hearing, a document called an information will be filed which makes the defendant’s approved charges formal. An information authenticates the charges were supported by probable cause at the preliminary hearing (usually the original charges filed by the prosecutor’s office). Going forward, the district attorney and defendant’s counsel have a multitude of motions they can file to achieve assorted tasks in preparation of trial. Discussed below are the most common motions.
Motion to Suppress
As previously discussed, a motion to suppress attempts to stop evidence which was obtained illegally from being admissible at trial. The primary focus of this motion is on evidence which was gathered in violation of the accused’s Constitutional rights. Common instances are improper arrests, illegal searches, and coerced confessions. The state is not allowed to benefit from police misconduct. Suppression can be extended even further. It can sometimes encompass all evidence which was derived from the illegal conduct. Imagine a cop arrests a person of interest by illegally entering their residence without a proper warrant. Upon entering the residence, the officer sees a stolen computer and seizes it. If the cop was inside the residence legally, this evidence would be admissible, but since he was not, the evidence should be suppressed. Now imagine that the cop opens the computer once back at his office and finds forged tax return documents. Those documents should be suppressed, as they were derived from the illegal entry. There are exceptions to when evidence is suppressed, but a good portion of illegally gathered evidence falls under this rule of derivation.
If the defense is successful in getting evidence suppressed, the results can extremely affect the state’s case. The case could fall apart if a key piece of evidence is inadmissible. Experienced defense counsel can use a pending motion to suppress to finesse into a beneficial plea bargain. If the defense’s motion fails, the effect is not as positive but can be just as dramatic. Just because evidence was illegally obtained, it does not mean it is admissible at trial. To be admissible, the evidence must fully adhere to the rules of evidence.
Motion in Limine
A motion in limine (lem-on-ney) is similar to a motion to suppress, but the basis behind it is different. Rather than try to get the evidence inadmissible because it was illegally obtained, a motion in limine contests that the rules of evidence do not allow the evidence to be admissible at trial. There are a variety of reasons why the rules of evidence would prohibit certain evidence from being used at trial. These generally include evidence that is directed to lead the jury to decide a case based on emotion instead of facts or evidence that is quite frankly too unreliable to be contemplated. The court does not make a decision on a motion in limine until the evidence is presented at trial. A benefit of filing these motions before trial is to inform the judge of the law surrounding the issue rather than attempting to argue a difficult legal argument on-the-fly at trial. Motions in limine can also be used to demonstrate to the judge with law that a piece of evidence is actually admissible when it appears to be disallowed by the rules of evidence.
Motion to Dismiss
A motion to dismiss contends that something is so insufficient with the accusations or case that the judge has the authority to dismiss the case without having a trial. Motions to dismiss focus on procedural issues of the prosecution rather than the case’s facts. For instance, the crime could have taken place in a completely different state and has no direct ties to Kansas, which would mean the court may lack jurisdiction and should therefore dismiss the case. These motions could also argue that the allegations, even if true, do not establish a crime according to Kansas law. In State v. Tendon, charges of arson were dismissed because the fact the defendant was requested to burn the property by its rightful owner was undisputed. As according to Kansas law, arson must be the intentional burning of an individual’s own property or the property of another individual without consent, therefore in Tendon, the accusations of the charge did not amount to arson.
Motion to Modify Bond
An additional motion your defense attorney could make is a modification of bond. As a case proceeds, the court will become familiar with the case and learn of the strength of the evidence. Further, upon the accused hiring an attorney, the worries of flight are reduced. Accordingly, the factors used in initially setting bond before the case began have extensively changed. Defense counsel can motion the judge to remove certain bond conditions or reduce the bond amount. The prosecuting attorney is allowed to contest such changes and can also motion the judge to increase the bond or even re-jailing the defendant. However, before a defendant is sentence, the judge should recognize a premise regarding bond in a fair and reasonable amount.