Following the preliminary examination, the defendant’s approved charges are made formal via the filing of a document called an information. This document establishes the charges that were found to be supported by probable cause during the preliminary examination—almost always the charges originally filed by the district attorney. At this point, both defense counsel and the district attorney have a variety of motions they may file to accomplish various tasks in preparing for trial. The most common motions are discussed below.
Motion To Suppress As discussed previously, a motion to suppress seeks to prevent illegally obtained evidence for being used at trial. The focus of these motions is on evidence that was obtained in violation of the defendant’s Constitutional rights. Common examples include illegal searches, improper arrests, and coerced confessions. When the actions of the police are improper, the state is not permitted to reap the rewards of illegal behavior by using the evidence found. But the suppression can go a step further. Not only is evidence that was directly found from illegal conduct suppressed, but generally so is evidence that is found based upon actions growing out of the illegally obtained evidence. For example, suppose an officer arrests a suspect by illegally entering the suspect’s home without a warrant. Once in the home, the officer sees what he recognizes as a stolen computer and confiscates it. This action would be proper had the officer been legally inside the suspect’s home, but since he was not legally there, the computer should be suppressed. But the officer did not stop at the computer; instead, he immediately opened the computer once back at the police station and found fraudulent tax documents for the suspect. These documents should also be suppressed, as they grow out of the illegal entry as well. There are exceptions to when evidence should be suppressed, but this rule of outgrowth holds true for a good portion of illegally obtained evidence.
If a defendant succeeds in having the evidence suppressed, the results can be devastating for the state’s case. A key piece of evidence may be lost, resulting in the case simply falling apart. Thus, experienced counsel can use even a pending motion to suppress to maneuver into a favorable plea agreement. In the event that a defendant’s motion fails, the effect is not positive, but nearly as dramatic. Simply because a piece of evidence was legally obtained does not mean it will be allowed to be presented at trial. For that, the evidence must fully comply with the rules of evidence.
Motion In Limine A motion in limine (lem-on-ney) operates similarly to a motion to suppress, but the basis is quite different. Rather than arguing the evidence was illegally obtained, motions in limine argue that the rules of evidence do not permit the evidence to be used a trial. The rules of evidence prevent certain evidence from being presented for a wide variety of reasons. These commonly include evidence that is aimed at leading the jury to decide a case based on passion rather than facts or evidence that is simply too unreliable to be considered. Judges tend to deal with motions in limine a bit differently than suppression motions, not making a decision until the evidence is actually presented at trial. The benefit of filing these motions is placing the law before the judge early on, rather than having to make a complex legal argument on-the-fly during trial. These motions can be used to cut the other way as well, presenting the judge with law that supports the use of a particular piece of evidence—especially when the evidence seems to be barred by the rules of evidence.
Motion To Dismiss A motion to dismiss argues that something is so defective with the allegations or case that the court has the power to just dismiss the matter without a trial. A motion to dismiss focuses on defects with the process of pursuing the claim in court, rather than the facts of the case. For example, the court may lack jurisdiction over the matter if the alleged crime took place entirely in another state and there was no direct effect on Kansas. The motion may also argue that the accusations, even when taken as true, do not constitute a crime under Kansas law. In State v. tendon, the charges of arson were dismissed because it was undisputed that the defendant had been asked to burn the property at issue by the owner. Because under Kansas law, arson must be the burning of one’s own property or the property of another without consent, the allegations in the charge could not be arson.
Motion To Modify Bond One ancillary motion that defense counsel may need to make is a modification of bond. As a prosecution progresses, the court will become more familiar with a case and the likely strength of the evidence. Additionally, once a defendant has retained counsel, most of the worries regarding flight will be reduced. This means the factors used in setting bond at the very beginning of incarceration have substantially changed. The defense attorney can motion the court to reduce the bond amount or remove certain conditions on the bond to address these changes. The district attorney is allowed to argue against such changes and can also motion the court for increased bond or reincarnation of a bonded defendant. However, when a defendant is not yet sentenced, the court should recognize a presumption towards bond in a fair and reasonable amount.