A motion is a document filed requesting the court to make a ruling or take some other action. Motions are important tools in a criminal defense attorney’s arsenal.
The Wisconsin Supreme Court has found that an essential part of effective representation of criminal defendants is pretrial motion practice. State v. Harper. Sometimes lazy or unskilled defense attorneys will fail to file motions, assuming a case will be settled or that the motions will be unsuccessful. Our defense attorneys believe that such a belief is often a serious mistake. Pretrial motions serve various purposes, such as:
- Making a record for appeal;
- Allowing the defendant to learn more about the case than he’d know simply through discovery;
- Encouraging the prosecutor to settle the case;
- Allowing the defense attorney an opportunity before trial to evaluate witnesses, lock in their testimony, and identify inconsistencies;
- Educating the prosecutor, judge, and defendant regarding certain issues;
- Possible testing of the defense theory.
A motion is an application for an order from the court. Wis. Stat. sec. 971.30(1). Unless the court otherwise specifies, motions must:
- Be in writing;
- Contain a caption setting forth the name of the court, the venue, the title of the action, the file number, a denomination of the party seeking the order or relief and a brief description of the type of order or relief sought;
- State with particularity the grounds for the motion and the order or relief sought.
Often motions that are of relatively minor importance, or issues that cannot be reasonably anticipated in advance, are raised orally.
What are the different kinds of motions?
Motions are generally divided into two types: evidentiary and nonevidentiary motions. Nonevidentiary motions do not require presentation of evidence, they simply require legal argument. A motion that requires testimony or other evidence in support of the requested relief is an evidentiary motion.
Below you’ll find a non-exhaustive list of possible motions filed in a criminal case:
- Request for Substitution of Judge
- Motion to Dismiss: Precharging or Prearrest Delay
- Motion to Dismiss: Defective Complaint
- Waiver of Preliminary Examination
- Motion to Dismiss: Unconstitutional Statute
- Motion to Dismiss: Double Jeopardy
- Motion to Dismiss: Franks-Mann Motion
- Motion to Dismiss: Multiplicity/Duplicity
- Motion to Dismiss: Untimely Preliminary Examination
- Motion to Dismiss: Untimely Information
- Motion to Dismiss: Vindictive or Retaliatory Prosecution
- Motion to Dismiss: Selective or Discriminatory Prosecution
- Motion to Dismiss: Statute of Limitation
- Defendant’s Demand for Discovery and Inspection
- Motion for In Camera Inspection
- Defendant’s Motion for Psychological Examination of Complaining Witness
- Motion for Testing by the State Crime Laboratory
- Motion for a Bill of Particulars
- Notice of Alibi
- Motion to Compel Disclosure of Confidential Informant
- Motion to Suppress Fruits of Vehicle Search/Search of Premises/Illegal Detention/Fruits of Illegal Arrest
- Motion to Suppress Identification
- Motion to Suppress Statements
- Motion to Dismiss for Destruction of Evidence
- Motion to Prohibit Consideration of Prior Conviction
- Motion for Continuance
- Demand for Speedy Trial
- Motion for Change of Venue or Venire
- Motion to Sever Defendants
- Motion to Sever Charges
- Motion in Limine
- Defendant’s Motion to Transport Prisoner
- Motion to Withdraw as Counsel