5.4 Motion Practice

• Library: Juvenile Law and Practice in Virginia (Virginia CLE) (2018 Ed.)

5.4 MOTION PRACTICE

5.401 Introduction. The informality of the juvenile justice process tends to discourage a formal motion practice in many jurisdictions. But the use of traditional pre-adjudication motions drawn from criminal practice can serve to minimize the effect of harmful evidence on the trial judge if motions are heard by a different judge in the jurisdiction. This may be especially desirable in the absence of a jury. Formal motions may also provide material for formulating an appeal. Juvenile cases move through the judicial system more rapidly than other cases, so timely filing is especially important.

5.402 Motion to Suppress. A motion to suppress illegally obtained evidence may be used if the Commonwealth intends to use confessions and other statements, identifications (whether obtained through a lineup or showup or through the use of photographs, fingerprints, writings, or bodily substance samples), or physical evidence obtained through an illegal search and seizure. ⁸¹

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5.403 Motion in Limine. It may be useful to file a motion to limit the scope of testimony at the adjudicatory hearing to exclude evidence that is potentially damaging or not relevant to the pending charges. This may include evidence of other misconduct or similar testimony or evidence whose prejudicial nature outweighs its probative value.

5.404 Motion for Severance. Because juveniles frequently commit offenses in groups, varying degrees of culpability may be assigned and widely disparate combinations of charges may be filed. If the case involves a younger co-defendant, a co-defendant who has a single charge pending while others have multiple charges, or a co-defendant who was, for instance, simply a lookout for an armed robbery, the attorney should move to sever the trials. Although granting a severance is at the discretion of the judge, the motion's chance of success is improved if (i) the juveniles have inconsistent defenses; (ii) evidence that is inadmissible against the client is admissible against a co-defendant; or (iii) the right to cross-examination is to some extent limited. Similarly, where there are multiple charges against the client arising out of unrelated matters, counsel may wish to seek a severance of the charges. The chance of success with this motion is enhanced if a constitutional issue is presented, such as where the client wishes to take the stand and testify on one charge but does not wish to be subject to cross-examination on other charges.

5.405 Motion for Speedy Trial. A motion for a speedy trial is especially pertinent where the juvenile is in detention and the trial does not occur until after the time limits provided in section 16.1-277.1 of the Virginia Code. Unfortunately, that section seems to recognize only a single sanction—release from custody. Nevertheless, the basic constitutional guarantee to a speedy trial does apply. In Barker v. Wingo, ⁸² the United States Supreme Court delineated four considerations in determining whether the right to a speedy trial had been denied: (i) whether the length of delay is such as to cause concern; (ii) the reasons for the delay; (iii) whether the defendant asserted the right to a speedy trial; and (iv) whether prejudice to the accused resulted from the delay. Because a juvenile's sense of time differs from an adult's, the length of the delay should weigh more heavily in juvenile cases. Although there are no Virginia cases involving purely juvenile speedy trial issues, other courts that have considered the issue have determined that the right to a speedy trial is enforceable in juvenile proceedings. ⁸³...