1989 Guideline 11.5.1

GUIDELINE 11.5.1 – THE DECISION TO FILE PRETRIAL MOTIONS

A. Counsel should consider filing a pretrial: notion whenever there exists reason to believe that applicable law may entitle the client to relief or that legal and/or policy arguments can be made that the law should provide the requested relief.

B. Counsel should consider all pretrial motions potentially available, and should evaluate them in light of the unique circumstances of a capital case, including the potential impact of any pretrial motion or ruling on the strategy for the sentencing phase, and the likelihood that all available avenues of appellate and postconviction relief will be sought in the event of conviction and imposition of a death sentence. 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 including disclosure of aggravating factors to be used in seeking the death penalty, and any reciprocal discovery obligations of the defense;

7. the suppression of evidence gathered as the result of violations of the Fourth, Fifth or Sixth Amendments to the United States Constitution, including:

a. the fruits of illegal searches or seizures;
b. involuntary statements or confessions; statements or confessions obtained in violation of the accused’s right to counsel, or privilege against self-incrimination;
c. unreliable identification testimony 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 may be denied to the client because of indigency and which may be necessary in the case, including independent and confidential investigative resources, jury selection assistance, and expert witnesses concerning not only the charged offense(s) and the client's mental condition, but also the criminal justice system itself;

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 evidence or procedure at either the guilt/innocence or penalty phase of trial which may be appropriately litigated by means of a pretrial motion in limine. including requests for sequestered, individual voir dire as to the death qualification of jurors and any challenges to overly restrictive rules or procedures;

13. matters of trial or courtroom procedure;

14. change of venue;

15. abuse of prosecutorial discretion in seeking the death penalty;

16. challenges to the process of establishing the jury venire.

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