Many criminal cases are won or lost long before a jury is empaneled and the first prosecution witness testifies at trial. Motions to dismiss, motions to suppress, motions to sever counts or defendants, motions to exclude evidence, and a plethora of other potential substantive motions must be carefully considered. When such a motion may help our client by weakening the prosecution’s case and increasing our leverage to obtain a favorable result, we research, brief, and argue the motion before the trial court and, in some circumstances, before an appellate court as well. A successful motion may end the case altogether or seriously hamper the prosecution’s ability to present its case at trial. In a recent first degree murder case we tried in Suffolk Superior Court, a successful motion to suppress our client’s confession led to an acquittal at trial. In a recent drug case we litigated in Middlesex Superior Court, a successful motion to suppress the fruits of a search warrant of our client’s home resulted in the prosecution’s dropping all charges. Even where a motion to suppress or another substantive motion is denied by the trial court, that same motion may lead to the overturning of any subsequent conviction on appeal. The opportunity to weaken the prosecution’s case through effective motion practice should never be wasted.
Discovery motions are also an essential element of our pretrial practice. Automatic discovery under the rules of criminal procedure is limited and grossly inadequate in many cases. One way to obtain the factual tools we need to attack the prosecution’s case at trial is through the creative and aggressive use of discovery motions. The increasing importance and complexity of forensic evidence in our trial courts had made pretrial discovery even more essential. The competency of crime lab technicians and the reliability of forensic testing techniques cannot be effectively challenged without obtaining the necessary materials through pretrial discovery. Conversely, we may need to resist the government’s efforts to obtain access to the fruits of the defense investigation and the materials the defense intends to use to challenge the prosecution’s case at trial. Discovery litigation in the criminal area is increasingly contentious and increasingly pivotal to the outcome of our cases.