Pretrial Motions

Fundamentals of Procedural Law by Adam J. McKee

Pretrial motions are legal requests filed by attorneys to the court before the trial begins. These requests aim to set the rules for the trial, gather more information, or even sometimes resolve the case without a trial. The two primary types of pretrial motions are “dispositive” and “nondispositive” motions.

Dispositive Motions

Dispositive motions are powerful instruments within the realm of procedural criminal law. They possess the capacity to significantly affect a case, potentially resolving a particular matter or even concluding the entire case prior to trial. Two primary types of dispositive motions are regularly employed in criminal cases: a motion to dismiss and a motion for a judgment of acquittal.

Motion to Dismiss in Criminal Law

A motion to dismiss in criminal law is generally employed when the defense asserts that the charges brought by the prosecution are legally insufficient, or that the indictment or information presented does not state a criminal offense. For example, if a defendant is charged with theft but the prosecution does not adequately allege the necessary elements of theft in the indictment, the defense could file a motion to dismiss, asserting that the prosecution’s case is legally insufficient, even if all the allegations are accepted as true.

Motion for a Judgment of Acquittal

A motion for a judgment of acquittal, similar to a motion for summary judgment in civil cases, is invoked after the prosecution has presented its case, but before the case goes to the jury. This motion contends that the prosecution’s evidence, even when viewed in the light most favorable to the prosecution, is insufficient to prove the defendant’s guilt beyond a reasonable doubt. For instance, if a defendant is charged with robbery and the prosecution fails to present sufficient evidence showing the defendant took someone else’s property by force or threat, the defense might file a motion for a judgment of acquittal.

The objective with both types of dispositive motions is to streamline the criminal legal process, preventing unnecessary trials when the law leans towards the defendant’s favor. Both motions could effectively end a criminal case before it reaches the jury, highlighting their significance in the landscape of procedural criminal law.

Nondispositive Motions

Nondispositive motions are another vital component of the court’s procedural machinery. Unlike dispositive motions, which can decide an entire case or significant aspects of it, nondispositive motions typically tackle subsidiary issues and procedural matters within a case. They might not directly alter the case’s outcome, but they play a critical role in managing its flow and, indirectly, can influence its direction. Two commonly encountered examples are motions to compel discovery and motions to change venue.

Motions to Compel Discovery

In the litigation process, discovery is a crucial phase where parties exchange information relevant to the lawsuit. A motion to compel discovery arises when one party refuses or fails to provide requested information, which the requesting party believes they are entitled to access. For example, suppose a plaintiff requests specific documents from the defendant, which they believe could prove their case, but the defendant refuses to provide them. In such a case, the plaintiff could file a motion to compel discovery, requesting the court to order the defendant to release the documents.

Motions to Change Venue

A motion to change venue is another type of nondispositive motion. It is filed when a party believes the trial should be moved to a different geographic location for a fair trial. Reasons for such a motion could include pretrial publicity negatively affecting potential jurors’ impartiality in the current venue, or the venue might be inconvenient for witnesses to attend. For instance, if a high-profile case in a small town generates strong local opinions about the defendant’s guilt, the defense may request a venue change to ensure an unbiased jury.

While nondispositive motions do not directly decide a case’s outcome, they are fundamental to ensuring a fair, smooth, and efficient legal process, which ultimately can significantly influence the case’s direction and result.

Landmark Cases on Pretrial Motions

Let’s examine a few landmark Supreme Court cases that dealt with pretrial motions and their implications for criminal procedure.

Brady v. Maryland (1963): In this case, the Court held that the prosecution’s withholding of exculpatory evidence violated the defendant’s right to due process. This ruling gave rise to what we now refer to as “Brady material” or “Brady evidence,” and it often comes up in pretrial motions as a defendant requests such evidence from the prosecution.

Daubert v. Merrell Dow Pharmaceuticals (1993): This case revolutionized how courts evaluate scientific expert testimony. The Supreme Court ruled that federal judges have to act as “gatekeepers,” assessing the reliability and relevance of the proposed expert testimony. This “Daubert standard” has had a significant influence on pretrial motions related to expert testimony.

Crawford v. Washington (2004): In Crawford, the Court redefined how courts should assess “testimonial” hearsay evidence. The ruling, which restricts the use of out-of-court statements that are testimonial in nature unless the witness is unavailable and the defendant had a prior opportunity for cross-examination, has affected pretrial motions concerning the admissibility of evidence.


Pretrial motions are critical tools in the legal process that shape the course of the trial. They can determine what evidence is admitted, how the trial is conducted, and even if a trial is necessary. Landmark cases like Brady, Daubert, and Crawford illustrate how the Supreme Court’s interpretations have shaped the rules governing these motions and, consequently, the broader landscape of criminal procedure.


Brady v. Maryland, 373 U.S. 83 (1963)

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)

Crawford v. Washington, 541 U.S. 36 (2004)


Modification History

File Created:  08/08/2018

Last Modified:  07/24/2023

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This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.

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