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The Process Of Criminal Prosecution (Part 2: Pretrial Motions)

Posted by Alex K. Kriksciun | Jun 07, 2017 | 0 Comments

Last week, this blog addressed arraignment and the deadline for filing pretrial motions.  Now, we are going to look at pretrial motions in more detail.  As mentioned last week, the most commonly filed pretrial motions are: (1) a motion to suppress evidence, (2) a motion to suppress statement(s), (4) a motion to suppress identification, and (4) a motion for a preliminary hearing.

Motions to suppress evidence pertain to actual pieces of physical evidence.  Typically, the motion argues that a piece of evidence should be suppressed (i.e. prevented from being used by the state) because the evidence was seized in violation of the defendant's Fourth Amendment right against unlawful searches and seizures.  In many cases, if a motion to suppress evidence is granted, the state has no case and must dismiss the prosecution.  This concept is most easily illustrated in drug cases.  If, say, a person is charged with possession of heroin, and the trial court grants a motion to suppress the heroin because law enforcement's initial stop of the defendant was unlawful, then the state cannot use the heroin at trial.  I cannot imagine how the state could secure a conviction for possession of heroin without introducing the heroin into evidence.  In this situation, the state must enter anolle prosequi (a Latin legal term meaning “be unwilling to pursue”), which amounts to a dismissal of the charge(s).

When a motion to suppress statement is filed, the defense lawyer is seeking to exclude a statement or statements that the client made to law enforcement.  Unfortunately, from a criminal defense lawyer's perspective, many clients make statements to the police that either amount to an actual confession or could reasonably be construed as an admission of guilt.  These types of statements can be devastating to a defendant.  This is why Robert Jackson, a United States Supreme Court justice in the 1940's and 1950's (and the last such justice appointed to the court without a law degree) famously stated the following: “any lawyer worth his salt will tell the suspect, in no uncertain terms, to make no statement to the police under any circumstances.”  That aphorism is as true today as it was then.  Most motions to suppress statements allege that the statement(s) made to law enforcement violated the defendant's Fifth Amendment right against self-incrimination, the defendant's Sixth Amendment right to counsel, or both.  There have been many Supreme Court cases over the years that have dealt with this subject, but the most notable and important by far is Miranda v. Arizona, from which the term “Miranda rights” derives. 

The general rule of Miranda is that if the suspect is in custody and being interrogated by the police, any statement that he makes to the police is inadmissible unless the police first inform the suspect of certain rights and the suspect voluntarily waives those rights.  The rights that must be read to the suspect have been memorialized in countless TV shows, movies, and other media.  They almost always begin with the words: “Anything you say or do can be used against you in a court of law.  You have the right to a lawyer.  If you cannot afford a lawyer, one will be appointed to you . . . “or something to that effect. 

As an aside, I have had countless clients and potential clients inform me of their opinion that their case should be dismissed because the police did not read them “their rights.”  It's nowhere near that simple.  Even if law enforcement does not read a suspect their Miranda rights (which they do not do in a surprisingly large amount of cases in Louisiana), that does not directly impact the merits of the state's case.  Imagine a person driving on the interstate by himself.  He has a backpack with a key of yayo in the passenger seat.  He then gets stopped and searched for whatever reason and makes a confession to the arresting officer without being read his Miranda rights.  In this case, the charges will not be dismissed merely because the arresting officer forgot to read suspect his Miranda rights at the time of the arrest.  Even if the confession is later suppressed, the state would still have a pretty strong case regardless; the person in my hypothetical was basically caught red-handed.  It is also worth noting that Ernesto Miranda, whose kidnapping, rape, and armed robbery convictions were thrown out in Miranda v. Arizona based on the involuntariness of his confession, was retried for the same offenses without the use of the confession he gave to police.  He was convicted of the same offenses again.

Motions to suppress identifications seek to exclude evidence where a witness or victim to a crime has identified a suspect as having committed the crime or as having been present at the scene of a crime.  One identification procedure has also been referenced in countless TV shows and movies.  I'm thinking of Law & Order, where Jack McCoy is with a witness in a police station room with a one-way mirror, and in walk six people holding pieces of paper with numbers.  The witness then says “it's number 3.  He's the guy that shot and killed my husband.”  That type of identification called a “lineup.”  In my corner of Louisiana, this rarely if ever happens.  More often, here a witness is presented with a piece of paper with six photographs taken from Louisiana driver's licenses.  One of the faces is the suspect and the remaining five are photographs of persons with similar build, skin tone, facial characteristics, and other identifying factors.  The photographs are all numbered, as in a live lineup.  The witness then either identifies a particular photograph as being the person that was involved in the crime or does not identify anybody.  That procedure is known by various terms, but we usually call it a “photographic lineup.”  If the witness confidently and definitively identifies a person (whether in a lineup or photographic lineup) as being involved in a crime, and that person is your client, that's no bueno and can be very difficult to suppress.  More troublesome from a constitutional standpoint are “showups,” which occur when (for example) a person gets robbed, calls the police who apprehend who they believe to be the robber in short order.  Police then put the alleged culprit in the back of a police car in handcuffs, drive to where the victim is speaking to other police officers, point to the alleged robber in the police car, and ask the victim “this is the guy right?”  This process is disfavored by the courts and, to be fair, by law enforcement as well.  Showups are much more likely to be suppressed by a judge.

The last common pretrial motion filed in Louisiana, the motion for preliminary examination, is completely different.  A preliminary examination is a hearing where a judge determines whether the state has probable cause to support the crime alleged.  Preliminary exams can only be conducted in felony cases where the defendant was charged via bill of information (i.e. the district attorney filing paperwork with the clerk's office) rather than indictment (i.e. where the district attorney presents the case to a grand jury). 

While hearings on motions to suppress are relatively uniform throughout the state, preliminary examinations vary widely parish-to-parish.  In Orleans, a magistrate usually makes a probable cause determination at the same as setting bond.   After counsel has filed his motion for a preliminary examination, he may then have the issue of probable cause raised again at a subsequent hearing.  In Jefferson, prior to institution of charges, the preliminary exam is almost never heard unless the suspect is in custody.  For whatever reason, the commissioners in Jefferson are loath to hear a preliminary exam prior to the institution of charges for a suspect who is not in custody, even though LSA-C.Cr.P. art. 292 clearly states that the judge “shall immediately” order a preliminary exam on request of the defense.  I have had to moan and complain about this on more than a few occasions, but I have always been successful in getting a preliminary exam heard for clients who are not in jail prior to the institution of charges.  If a preliminary exam is heard in Jefferson prior to the institution of charges, many judges will not consider the issue again at a subsequent motion hearing.  From my perspective, preliminary exams are a great opportunity to weigh the strength of the state's case.  It can expose weaknesses, give me clues as to how a witness might testify at trial, and provide me with information that I would not otherwise have known. 

That is how pretrial motions work in a nutshell.  Next week, I will discuss the next two steps that typically occur after arraignment.  As always, if you or anybody you know is in need of a criminal lawyer, be sure to contact the Law Office of Alex Kriksciun today!

About the Author

Alex K. Kriksciun

Attorney at Law/Notary Public Alex K. Kriksciun has devoted most of his legal career to defending the rights of people accused of crimes and the rights of people harmed by the negligence of others.  Whether the case involves a municipal citation, a life imprisonment without parole case, a wrongf...


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