THINK STRATEGICALLY ABOUT THE ORDER IN WHICH PRE-TRIAL CRIMINAL MOTIONS ARE ARGUED
Every criminal defense attorney should think strategically about the order in which pre-trial criminal motions are argued. The order in which motions are presented can have a significant impact on the tenor of a hearing and, ultimately, help the judge to see things your way.
WHEN POSSIBLE, ARGUE PRE-TRIAL MOTIONS THAT YOU CONTROL FIRST.
In Georgia, there are certain pre-trial motions that the criminal defendant bears the burden upon. For example, if a defendant is asking the court to bar a prosecution based upon a violation of the defendant’s constitutional right to a speedy trial, the defendant bears the burden at the hearing. If you bear the burden on the pre-trial motion, own it. Do not shy away from taking control of the argument and evidence provided in support of your motion. If you cede control of the course of the proceedings to the State, expect to lose. On the other hand, when you control the pace and flow of the argument and evidence, you will dramatically improve your chance of success at your pre-trial motion hearings in criminal cases.
WHEN CONSIDERING THE ORDER OF MOTIONS PRESENTED TO THE COURT, PROGRESS FROM THE MORE FATAL TO LESS FATAL ISSUES TO THE STATE’S CASE.
I encourage criminal defense attorneys to present motions separately. For example, if you intend to go forward on a plea in bar or motion to dismiss based upon a violation of your client’s right to a speedy trial, a motion to suppress a warrantless search of your client’s car, and a special demurrer. If the court will permit it, do not take evidence all at once and proceed to argue all of the issues together. When the court will permit you to do so, argue the issues separately.
In selecting the order of motions to present to the court, I like to argue those motions that, if granted, would most substantially alter the state’s case first.