Selecting and Drafting Motions: Strategic and Practical Considerations

• 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: 155-165

155

CHAPTER 7

SELECTING AND

DRAFTING MOTIONS:

STRATEGIC AND

PRACTICAL

CONSIDER ATIONS

§ 7.01 The Importance of Motions Practice;

the Objectives to Be Sought

Pretrial motions practice is crucial to effective defense work. Successful litigation of

motions can win the case—either by producing outright dismissal of the Petition (for

example, when the defense prevails on a motion challenging the legal sufficiency of the

Petition or the jurisdiction of the court) or by excluding evidence that the prosecution

needs in order to win the trial (for example, when the defense prevails on a motion to

suppress tangible evidence, confessions, or identification testimony).

Even when the defense loses a motion, there are often net benefits to litigating

it. Motions practice serves as a highly effective discovery technique; the prosecutor’s

written and oral responses to the defense motion, and evidentiary hearings held on the

motion, provide the defense with information about the prosecution’s case that it would

not otherwise have learned. In addition, when a motion generates an evidentiary hear-

ing, defense counsel gains an invaluable opportunity to pin down prosecution witnesses

on the record, developing transcripts that can be used at trial to impeach the witnesses

with prior inconsistent statements.

The defense also gains other fringe benefits from motions practice. The judge’s rul-

ing on the motion may provide a fertile source of reversible error on appeal. In cases in

which a guilt y plea is under consideration but counsel is not sure about the strengt h of the

government’s case, an evidentiar y hearing on a motion to suppress can provide a preview

of the prosecution’s evidence that will enable counsel to evaluate realistically the wisdom

of the offered plea. Or if counsel has concluded that a plea is wise but the client is uncon-

vinced, the client’s observation of the prosecut ion’s witnesses at an evidentiar y suppression

hearing may change the client’s mind and enable him or her to reach the right decision.