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Pretrial Motions

Fighting the Case Before Trial

Some cases are won before trial. An experienced Georgia Criminal Defense Attorney like Ben knows how to look for every possible motion that can be argued before trial. There is literally no end to the types of motions that can be filed. Pretrial motions will typically attack the admissibility of certain evidence or may attack the legitimacy of the indictment itself. Some of the more common pretrial motions are described below.

Motion to Suppress

A suppression motion assails the legality of certain evidence the cops obtained and the State wishes to introduce against you at trial. A motion to suppress must be timely filed, and must particularize the bases for exclusion of the evidence in question. Once filed, a hearing will be held before the trial judge to determine whether the evidence is legally admissible. The State has the burden at such a hearing to prove the admissibility of the evidence.

Most suppression motions relate to allegations by the defendant that contraband found by the police was illegally obtained. This might be because of an illegal vehicle stop, an illegal arrest, a bad search warrant or an invalid consent search. 

Other suppression issues include challenging the admissibility of statements made by the defendant. The challenge may be made on a Fifth Amendment of Sixth Amendment basis. 

Unlike the automatic right to appeal a conviction, a defendant cannot automatically appeal the denial of the motion to suppress. First, the defendant must obtain, within 10 days of the order denying the motion, what is called a "certificate of immediate review" from the trial judge. This document is essentially permission from the trial court to attempt an appeal at that juncture of the ruling denying the motion to suppress. The trial court does not have to issue the certificate, and trial judges oftentimes reject these attempts by the defendant.

If the certificate is granted, the defendant then has 10 days from the filing of the certificate to file an application for interlocutory appeal in the appellate court. More about this process can be read here, but the application is an attempt to persuasively convince the appellate court of the trial court's error and how the error will have a drastic effect on the case. If the application is granted, the case takes the form of a normal appeal.

Motion to Sever

A motion to sever can be asserted in one of two ways: a motion to sever the trial of one defendant from other defendants, or a motion to have separate trials on different counts in the same indictment. Severance from other defendants most commonly occurs when there is what is called a Bruton problem in the case.

A criminal defendant has a constitutional right to confront the witnesses against him or her. Sometimes in cases involving co-defendants, one co-defendant makes a statement implicating the other co-defendant. Both defendants have a right to remain silent and not testify at trial. If the State wishes to introduce the statement in question, the second co-defendant would be deprived of confronting the first co-defendant with the damaging statement unless the first testifies. Thus, the State under these circumstances has to choose between not introducing the statement at all or severing the trials of the two co-defendants. 

A motion to sever counts may be filed when the defendant fears that the evidence on one count will be damaging to his chances of success on the other count or counts. For example, if the defendant is charged with possession of a firearm by a convicted felon, the jury would certainly be prejudiced by knowing from the jump that the defendant has a criminal record. Under these circumstances, the defendant would be entitled to severance of the firearm count.  

Other factors in the analysis of severance of counts include whether the evidence of one offense would be admissible as evidence in the trial of the other offense, whether the offenses occurred at the same time and place, whether they are sufficiently similar in nature and whether the offenses evince a particular scheme or modus operandi of the defendant. 


Demurrers are attacks on the indictment, where the defendant is asking the trial court to quash, or dismiss, the indictment. There are two types of demurrers, special and general.

A special demurrer, which attacks the form of the indictment, must be made within 10 days of the arraignment of a defendant. A defendant is entitled to as much specificity as possible about the precise allegations against him as well as the time that the offenses allegedly occurred. This knowledge is vital to a defendant and his or her attorney in preparing a defense to the charges. If the State fails to put the defendant on the required notice, the trial court may quash the indictment on these grounds. 

A general demurrer, which attacks the validity or legality of the indictment, may be made at any time before a verdict is rendered, even during trial. If made after trial, it is asserted as a motion in arrest of judgment. A general demurrer typically attacks the indictment in one of two ways. First, the defendant may argue that the indictment fails to allege all the essential elements of the crime charged. For example, if the State were to charge someone with armed robbery but fail to allege in the indictment that the defendant used a weapon, the defendant could theoretically admit to all the allegations in the count and still not be guilty of armed robbery. This would provide a basis for a general demurrer. For strategic reasons, a trial lawyer would normally want to wait to raise this until after jeopardy attaches at a trial, because then the State would be precluded from further prosecution on the charge.

The second type of general demurrer is a challenge to the constitutionality of a statute. We are entitled to notice of exactly what conduct a statute prohibits, and a statute that fails to provide this notice is unconstitutional and subject to a general demurrer. In McNair v. State, Ben challenged the legality of Georgia's then-left turn statute, arguing that it was unconstitutionally vague. The trial court denied the motion, but the Supreme Court of Georgia unanimously reversed, agreeing with Ben's assessment of the statute. 

"Without a Doubt the Best"

"I would highly recommend Ben. There were not any surprises or extra costs. He was very clear on what to expect. Even more impressive was what happened before I went to court and while in court, everything happened exactly as Ben had told me it would. When I was in the court room and Ben needed to make things happen, he was so articulate I felt as though I had an entire team of lawyers."

"Truly an attorney with not just intellect but heart!"

"When Mr. Goldberg came into my life, he went against all odds, believed in my innocence, fought for my justice, and supported me as my lawyer and my friend. I personally believe that when Mr. Goldberg chose to practice law, his goal was not money nor prestige, but was only the well-being of the client. More specifically, he values the lives of the individuals he represents and provides them with the best defense to see to it that justice is served."

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