Current through Register Vol. 50, No. 9, September 20, 2024
A. Counsel should consider filing an
appropriate motion whenever there exists a good-faith reason to believe that
the defendant is entitled to relief which the court has discretion to
grant.
B. The decision to file
pretrial motions should be made after considering the applicable law in light
of the known circumstances of each case.
C. Among the issues that counsel should
consider addressing in a pretrial motion are:
1. the pretrial custody of the
accused;
2. the constitutionality
of the implicated statute or statutes;
3. the potential defects in the charging
process;
4. the sufficiency of the
charging document;
5. the propriety
and prejudice of any joinder of charges or defendants in the charging
document;
6. the discovery
obligations of the prosecution and the reciprocal discovery obligations of the
defense;
7. the suppression of
evidence gathered as a result of violations of the Fourth, Fifth or Sixth
Amendments to the United States Constitution, or corresponding state
constitutional provisions, including:
a. the
fruits of illegal searches or seizures;
b. involuntary statements or
confessions;
c. statements or
confessions obtained in violation of the accused's right to counsel or
privilege against self-incrimination;
d. unreliable identification evidence which
would give rise to a substantial likelihood of irreparable
misidentification;
8.
suppression of evidence gathered in violation of any right, duty or privilege
arising out of state or local law;
9. access to resources which, or experts, who
may be denied to an accused because of his or her indigence;
10. the defendant's right to a speedy
trial;
11. the defendant's right to
a continuance in order to adequately prepare his or her case;
12. matters of trial evidence which may be
appropriately litigated by means of a pretrial motion in limine;
13. matters of trial or courtroom
procedure.
D. Counsel
should withdraw or decide not to file a motion only after careful
consideration, and only after determining whether the filing of a motion may be
necessary to protect the defendant's rights, including later claims of waiver
or procedural default. In making this decision, counsel should remember that a
motion has many objectives in addition to the ultimate relief requested by the
motion. Counsel thus should consider whether:
1. the time deadline for filing pretrial
motions warrants filing a motion to preserve the client's rights, pending the
results of further investigation;
2. changes in the governing law might occur
after the filing deadline which could enhance the likelihood that relief ought
to be granted;
3. later changes in
the strategic and tactical posture of the defense case may occur which affect
the significance of potential pretrial motions.
AUTHORITY NOTE:
Promulgated in accordance with
R.S.
15:142, 147 and
148.
