Interlocutory Review of Pretrial Rulings by Means of Prerogative Writs

• Author: Anthony G. Amsterdam/Martin Guggenheim/Randy A. Hertz
• Profession: University Professor and Professor of Law at New York University/Fiorello LaGuardia Professor of Clinical Law at New York University School of Law/Professor of Clinical Law at NYU School of Law
• Pages: 631-633

631

CHAPTER 26

INTERLOCUTORY

REVIEW OF PRETRIAL

RULINGS BY MEANS OF

PREROGATIVE WRITS

§ 26.01 The Availability of Prerogativ e Writs to Obtain

Interlocutory Review of Pretr ial Rulings

In most jurisdictions, pretrial rulings denying defense motions or resolving other issues

unfavorably to the defense are unappea lable because of the absence of any appellate juris-

diction to entertain interlocutory appeals. See, e.g., In the Matter of Appeal in Maricopa

County Juvenile Action No. JT-295003, 126 Ariz. 409, 411, 616 P.2d 84, 86 (Ariz. App.

198 0); In the Interest of A.M., 94 I ll. App. 3d 86, 88, 418 N.E.2d 484 , 485, 49 Ill. De c. 630

(1981). The ordinary means of securing appellate rev iew of claimed errors in pretrial

rulings is an appeal from the tr ial court’s judgment adjudicating the respondent a delin-

quent and entering a dispositional order. See § 39.02 infra.

Interlocutory review by an appellate cour t may nonetheless be available through the

prerogative writs of mandamus a nd prohibition. In the vast majority of jurisdictions,

statutes or the common law give appellate courts the power to issue these prerogative

writs. In appropriate circumstances the writs may be used to obtain im mediate review

of pret rial orders in delinquency cases. See, e.g., Dan iel V. v. Super ior Cour t, 139 Ca l. App.

4th 28, 39–40, 49, 42 Cal. Rptr. 3d 471, 477–78, 485 (2006) (granting a petition for a

peremptory writ of mandate on the grou nd that the trial judge had abused her discre-

tion by erroneously denying, as untimely, a petition for judicial disqualif ication under a

statute that “calls for automatic reassig nment [of t he case] to another judge if a challenge

is duly presented”); P.V. v. Distric t Court in and for the Tenth Judicial Dist rict, 199 Colo.

357, 609 P.2d 110 (1980) (granting a petition for writs of prohibition and mandamus and

directing t he trial court to d ismiss a delinquency Petition for violation of the juvenile’s

constitutional and statutory rights to a speedy tr ial); People ex rel. Thomas v. Judges of the

Family Court, 85 Misc. 2d 569, 379 N.Y.S.2d 656 (N.Y. Supreme Ct., Special Term 1976)

(issuing a wr it of prohibition forbidding the Family Court to tr y a juvenile on a Peti-

tion that was barred by double jeopardy); State in the Interest of Joshua, 327 So. 2d 429