Motions Practice
A motion is a request, supported by citation or reference to legal authority, made to the judge by the lawyer for a party to a case, for certain legal relief. A motion can be oral or in writing. It can be made before trial, during trial, or after trial. It can be simple and routine, such as a request to exclude witnesses from the courtroom during a trial until after they have testified, in order to prevent them from being influenced by what other witnesses say from the stand. It can be complex and time consuming, such as a motion to exclude novel scientific evidence, supported by expert testimony, on the ground that the scientific conclusions in issue are insufficiently reliable to allow a fact-finder to consider them.
Motions can shape a case in different ways, from prompting a prosecutor to make a more favorable plea offer to increasing the likelihood of success at trial. For example, if novel scientific evidence is excluded by the trial judge after a defense motion, the case prosecutor may make a more lenient plea offer than he or she had made previously. This would be based on his or her assessment that the merits of the case had shifted, increasing the likelihood that the defense would win at trial.
Even when a defense motion is not granted (or, prospectively, not likely to be granted) , the mere filing of it may be of great importance. Unless certain motions are filed and litigated in the trial court, it may be difficult, if not impossible, to prevail on the particular legal issue on appeal. Sometimes, the law may be in the process of changing and, although the trial judge may feel that he or she must deny a particular motion, an appellate court may feel differently about it.
Moreover, filing various motions may serve the purpose of educating the trial judge about not just the legal issues in the case, but also about the equities, which may result in favorable rulings as the trial progresses. Additionally, filing a motion may require the prosecutor to take a particular legal and/or factual position that may help him or her win the motion, but that may help the defense later, as the case progresses.
Finally, filing motions may allow (or even require) the defense to call government witnesses to testify under oath. In general, this creates a record of sworn testimony from which the witnesses will not be able to deviate later.