Pretrial Motions That Shape a Federal Case.

There is no single federal dataset that identifies three objectively “most common” federal pretrial motions. As a result, we do not identify three most-likely-to-be-useful motions. However, there are certainly pretrial motions, or types of pretrial motions, that are encountered more frequently in federal criminal cases than not. We generally categorize those motions as:

• Pretrial motions to suppress
• Pretrial motions to dismiss
• Pretrial motions in limine

What Is the “80/20 Rule”?

The “80/20 rule” discussed in our previous section is a Pareto heuristic. It is not federal law (or a specific legal rule), and it is not intended to be used strictly as such. Instead, it serves as a general guide for identifying the subset of motions and strategic maneuvers that will likely yield the most value relative to the amount of effort and time it requires to execute them effectively.

What Is Rule 14 (Severance in Federal Criminal Trials)?

Rule 14 governs severance in federal criminal trials. According to the rule:

• If the joinder of offenses or defendants appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants’ trials, or provide any other relief that justice requires.

- To avoid prejudice to the defendant, or

- To ensure a fair trial for the defendant.

When Does Severance Require a New Trial?

The U.S. Supreme Court has held that Rule 14 does not require separate trials when defendants have mutually antagonistic defenses. Instead, the key issue is whether serious prejudice exists that threatens the defendant’s constitutional trial rights or the reliability of the verdict against the defendant. Specifically, the Court stated in Zafiro v. United States:

• “Mutually antagonistic defenses are not prejudicial per se,” and “a district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.”

Who carries the burden in federal pretrial motion practice?

In federal criminal cases, the prosecution carries the burden of proof to establish each element of the alleged offense beyond a reasonable doubt. This standard applies at criminal trial, and it is the highest burden of proof in the American legal system. As a result of the standard’s high bar, the burden of proof falls on the prosecution in criminal trial cases.

Conversely, the standards of proof used for pretrial motions are generally much lower. For example, the most common standard of proof in federal pretrial motions is a preponderance of the evidence, which essentially means that the proposition at issue is more likely true than false (i.e., that there is greater than a 50% chance that the proposition is true). In certain cases, the standard for federal pretrial motions may be clear and convincing evidence. A standard of clear and convincing evidence is one that requires a highly probable factual conclusion. This standard is higher than a preponderance of the evidence, but it is still far from the proof-beyond-a-reasonable-doubt standard that applies in criminal trial cases.

In addition to standard of proof issues, pretrial motions involving evidence obtained from searches and seizures also involve two distinct types of burdens: the burden of production and the burden of persuasion. The burden of production is the amount of evidence that a party must present to place a specific issue before the court. The burden of persuasion is the amount of evidence that a party must present to establish the truth of an issue. Alternatively, the burden of persuasion can be viewed as the assignment of the risk that the evidence presented will remain inconclusive, leaving it up to the judge to determine the outcome of the pretrial motion.

Again, the burden of proof in federal pretrial motions can vary depending on the circumstances involved in the case. For example, if the government seeks to use the evidence obtained during a warrantless search or seizure at trial, the government will generally be required to justify the warrantless search or seizure by proving that an exception to the warrant requirement applies. Conversely, if the search or seizure was supported by a warrant, the defendant will generally be required to justify the exclusion of the evidence by proving that the search or seizure was unjustified. As a result of the presumption of validity that is afforded to federal warrants, challenging a warrant-supported search will generally require a different approach to be successful compared to challenging a warrantless search.

Finally, it is important to note that a successful challenge to a warrant does not necessarily entitle the defendant to the exclusion of any evidence obtained during the search. The U.S. Constitution’s Fourth Amendment protects individuals from unreasonable searches and seizures, but it does not mandate the exclusion of evidence in every case involving an unreasonable search or seizure.

When can a federal court dismiss charges before trial?

When Can a Defendant Raise Objections to the Indictment Pretrial?

The pertinent substantive and procedural provisions of Rule 12 for raising pretrial objections to an indictment are contained in subsections (b) and (c), respectively.

Subsection (b)(3) lists objections that must ordinarily be presented to the court in a pretrial motion before the court can consider them in criminal trial motions. Subsection (c)(3) provides that a court “may” consider any of these objections “at a later time” if the objecting defendant makes a showing of good cause for doing so. With regard to the requirements for presenting objections to an indictment, the Rules of Criminal Procedure contain one notable change from the former rules. Specifically, the 2014 amendments to Rule 12 removed the Rule’s former waiver language, which previously stated that “[a] party waives any Rule 12(b)(3) defense, objection, or request not raised by the deadline the court sets under Rule 12(c) or by any extension the court provides.”

Along with raising objections to the indictment, defendants can use pretrial motions to raise issues with the government’s case that are separable from the merits of the case at trial. As stated, Rule 12 authorizes pretrial dismissals in appropriate cases. Rule 29, on the other hand, governs the dismissal of the case due to evidentiary insufficiency in cases where the government is not able to present sufficient evidence at trial to establish the defendant’s guilt.

Can a Federal Court Dismiss Charges in a Federal Criminal Case Based on Legal Insufficiency of the Indictment?

Yes, federal courts may dismiss charges based on legal insufficiency of the indictment. As we discussed in detail in our previous section, the relevant provision of Rule 12, which permits pretrial dismissal, applies in this context. When evaluating the legal sufficiency of a federal indictment for purposes of Rule 12 pretrial dismissal, courts will generally accept the allegations in the indictment as true.

The relevant substantive provision of the Federal Rules of Criminal Procedure for assessing the legal sufficiency of an indictment is Rule 7(c)(1). Rule 7(c)(1) requires the indictment (or another charging document) to contain “a plain, concise, and definite written statement of the essential facts constituting the offense charged.”

Along with raising a defendant’s constitutional defense to indictment based on lack of due process, a motion for dismissal based on legal insufficiency of the indictment may target the government’s efforts to overcome a recognized legal limitation on criminal prosecution. The government’s efforts to overcome such a limitation can raise a substantive legal issue that warrants dismissal of the charges before trial. Pretrial dismissal for the same reasons may also be available under the Double Jeopardy Clause of the Fifth Amendment.

Similar to the other motions for dismissal discussed above, Rule 12(b)(3) pretrial motions for dismissal are governed by Rule 12(c)(3), which requires that a defendant objecting to an indictment based on a legal issue that does not preclude pretrial consideration (as governed by Rule 12(b)(3)) present his objection to the court before the trial, if possible.

This is the point at which most people call a lawyer. Spodek Law Group takes federal criminal defense cases nationwide from its New York and Los Angeles offices.

How Can a Federal Pretrial Motion Control Discovery or Trial Evidence?

As we already discussed in the sections above, pretrial motions can be used not only to seek dismissal of the charges but to control discovery and the evidence presented to the jury at trial as well.

Among other things, motions in criminal cases often seek to compel the government to produce evidence, and to exclude evidence the government may otherwise be entitled to use in prosecutors’ arguments or to present to the jury. Pretrial motions for the exclusion of evidence can cover both physical and testimonial evidence.

With respect to compelling the production of evidence, federal pretrial motions can encompass requests for production of evidence under the Brady Rule, the Jencks Act, and the Federal Rules of Criminal Procedure and Evidence. Along with pretrial motions to compel discovery, defendants can use motions to seek exclusion of evidence obtained during government investigations.

Pretrial motions to compel production of evidence under the Brady Rule, the Jencks Act, and the Federal Rules of Criminal Procedure and Evidence will generally vary in timing, with some being filed much earlier in the process than others. For example, with respect to the Brady Rule, federal law does not establish a single nationwide production deadline. Instead, a successful Brady motion must essentially establish that the favorable evidence was not disclosed early enough to be useful in trial preparation, depending on the specific facts at hand and applicable case law.

In contrast to the timing and standard for Brady motions, the Jencks Act generally mandates disclosure of witness statements only after the witness’s direct examination at trial concludes. With that said, motions in criminal cases are frequently used to seek a change to the Jencks Act’s procedural requirements. However, courts generally will not find a basis for compulsory production of witness statements before the direct examination of the witness concluded, unless the court finds such production to be absolutely essential for a fair trial.

How Do Motions in Limine Differ from Other Pretrial Motions?

In federal criminal cases, motions in limine (similar to other pretrial motions) can be used by defense attorneys to seek advance rulings from a court. However, motions in limine specifically focus on the admissibility of evidence the defendant has reason to anticipate being presented at trial.

With respect to expert testimony, the Federal Rules of Evidence impose a burden of proof on the proponent of the testimony to show that the expert witness is qualified to offer an opinion, that their opinion will be helpful to the jury, that the opinion is based on sufficient facts or data, and that the expert’s opinion comes from reliable principles and methods. Rule 702 of the Federal Rules of Evidence specifies the standard of admissibility for expert testimony. Importantly, the 2023 amendments to Rule 702 clarify that the standard is a preponderance of the evidence:

• Rule 702 - a witness qualified as an expert “may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not” that the rule’s four requirements are met, including, under Rule 702(d), that “the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.”

How do filing choices affect appeals and defense strategy?

Will an Unconditional Plea in a Federal Case Waive My Right to Appeal?

Along with deciding whether to use pretrial motions in a federal case, defense attorneys must also consider the impact of accepting a plea deal.

Under Rule 11(a)(2) of the Federal Rules of Criminal Procedure, a defendant has the option to enter a “conditional plea.” According to Rule 11(a)(2), a defendant may “enter a conditional plea of guilty or nolo contendere, reserving in writing the right to have an appellate court review an adverse determination of a specified pretrial motion.” To enter a conditional plea, the defendant must obtain “the consent of the court and the government.”

Along with the right to appeal specific adverse rulings, the key benefit of a conditional plea is that if the defendant prevails on appeal, the defendant can withdraw his guilty or no contest plea and have the appellate court reverse the adverse pretrial ruling. This may provide a second opportunity to fight the charges at trial.

If the defendant does not enter a conditional plea, the consequences of accepting a plea deal depends, in general, on the type of plea the defendant enters. Unconditional guilty pleas generally act as a waiver of the defendant’s right to pursue appeals of many nonjurisdictional objections prior to accepting the plea. Plea agreements with factual stipulations typically waive all appeals except in the case of specific procedural issues or sentencings (i.e., those that can’t be deemed to have been waived by taking a plea).

Regardless of whether a defendant accepts a plea deal, any denials granted by a court in response to defendant-filed motions can, in some cases, be preserved for appellate review. The specific conditions and circumstances that establish preservation for appeal will depend on the facts at hand, applicable federal law, and the specific type of motion.

What Other Considerations Should Impact Pretrial Motion Practice?

Along with deciding which motions to file and the implications of entering a plea, defense attorneys need to account for several other important factors in their pretrial motion practice.

Other pretrial procedural issues that can affect the timing and content of pretrial motions include:

• Local rules and scheduling orders that dictate briefing deadlines and the length of briefings.
• Preserving legal issues for potential appeals.
• Trial strategies and defense witness disclosures.
• Judicial admissions.

As outlined above, Rule 12(c) allows the federal district court to establish timelines for filing and responding to pretrial motions.

Is a Rule 33 Motion Filed Before Trial?

No, a Rule 33 motion is not filed before trial. Rule 33 is what the federal rules call a “post-trial motion.” The provision of Rule 33 that authorizes a new trial provides, in relevant part:

• “The court may grant a new trial under Rule 33 on its own motion or on any party’s motion if the interests of justice so require.”

As a result, a Rule 33 motion for a new trial may be filed after conviction (and, only in appropriate cases, before verdict). To successfully seek a new trial, the Rule 33 movant must make a showing of facts and circumstances that “serve justice.”

With that said, the timing for filing a Rule 33 motion for a new trial is highly critical. In most cases, Rule 33 motion filed after conviction must be filed within 14 days of the verdict. However, if a defendant files a Rule 33 motion because of newly discovered evidence, the Rules of Criminal Procedure provide up to three years to seek a new trial.

Regarding appeals, a pending appeal may block a district court from granting a Rule 33 motion for a new trial until the appellate court remands the case back to the trial court.

With that said, it is important not to confuse a defendant’s appearance before a magistrate judge with a defendant’s arraignment. The initial appearance is a routine procedure in which a magistrate judge will advise the defendant of his charges, review his eligibility for pretrial release, and schedule future hearings. In contrast, an arraignment is a procedural hearing that will be held following the initial appearance, where the defendant will formally plead guilty, not guilty, or nolo contendere.

What is the Difference Between a Bill and an Indictment?

While the words “bill” and “indictment” are often used interchangeably in a legal or common context, the formal terms for charging documents are slightly different. Specifically, a “bill” is a type of charging document used in state criminal cases. In contrast, a “bill of indictment” or “indictment” is a type of charging document used in federal criminal cases.

Talk to Spodek Law Group

Every case turns on its own facts, and general information is no substitute for advice about yours. Todd Spodek, managing partner of Spodek Law Group, and the firm's attorneys defend federal criminal and white collar matters nationwide. Reach the firm at 212-300-5196.