The Criminal Case In A Nut Shell: A 9 Part Series, Part 5: Pre-Trial Discovery and Motion Practice

  • Michael H. Ricca,
  •   None

If you or a loved one has been charged with a crime, the criminal case process can feel discouraging and complicated. With the help of a reputable criminal defense lawyer, like Michael H. Ricca, you can rest assured you have an experienced guide to help you navigate the judicial system. Today, The Law Offices of Michael H. Ricca helps to explain the pre-trial discovery and motion practice portion of the criminal case process.

The Recap:

In our previous post, Part 4: Appearances and Plea Bargains, we talked about the importance of making every court date. We also explained the differences between the different pleas and plea bargains available to you.

To learn more about the criminal case process prior to today’s topic, check out: Part 1: The Stop and Arrest, Part 2: The Arraignment; and Part 3: The Preliminary Hearing or Grand Jury Proceedings.

Pre-Trial Discovery:

Discovery is an important step when it comes to a criminal case. The pre-trial discovery process allows both the prosecution and defense to gather information regarding the other side’s case. For your defense, your attorney can request many different pieces of evidence, including but not limited to the following items.:

  • Any sworn or unsworn written or oral statements made by you, the defendant, throughout the course of the criminal investigation;
  • Copies of statements made by expert and non-expert witnesses, as well as any reports from experts or non-experts;
  • If you testified during the grand jury proceedings, the defense can request a transcript of your testimony;
  • The results of any physical examinations or mental evaluations you may have undergone; and
  • Any forensic test results.

For a full list of items that can be requested during the discovery phase of your case, see the New York Criminal Procedure Law, Article 240. Pre-trial discovery often corresponds with pre-trial motions and hearings. This is because the evidence and items collected during pre-trial discovery can help you and your defense attorney to better gauge the case being presented by the prosecution as well as aid your defense attorney in determining the best strategy for your case. It can also help you and your defense attorney to better assess whether or not a plea bargain may be the best course of action.

Motion Practice:

Pre-trial motions and hearings are common practice among criminal cases. There are several different motions the defense may file in the interest of their client. Let us take a look at some of the most popular motions in the New York State criminal case process.

  1. Motion to Inspect the Minutes of the Presentment of the Case to the Grand Jury: This is the motion your defense attorney would file to obtain the transcript from the grand jury proceeding. Not only can this help your defense attorney to assess the prosecution’s case, but it also allows them to determine whether the prosecutor exceeded his or her authority.
  2. Motion to Dismiss the Indictment: If the grand jury transcript has led your defense attorney to believe that the prosecution improperly presented the evidence or exceeded his or her authority, a Motion to Dismiss the Indictment can be filed. Your defense team can also file a Motion to Dismiss for Facial Insufficiency, which will also void the indictment if successful.
  3. Omnibus Motion: An Omnibus Motion is typically filed in felony or severe misdemeanor cases. This motion is actually a collection of several different smaller motions. It must be filed within 45 days of your post-indictment arraignment.

The collection of motions filed under an Omnibus Motion can be filed separately. Some of the most popular motions filed under the Omnibus Motion umbrella include:

  • Motion to Suppress Evidence: Once evidence has been collected from the discovery, your defense team may file this motion. A motion to suppress evidence can include the suppression of physical, written, or documentary evidence, as well as witness testimonies. One of four types of suppression hearings may follow a filing of this motion.
  • Motion for a Pre-Trial Hearing on Precluding Eye Witness Testimony: When the defense feels that a potential eyewitness is mistaken, they may file this motion. Factors may include poor eyesight, lighting conditions, the distance between them and the accused, and other such limitations.
  • Motion to Prevent the Prosecutor from Using Evidence of Prior Convictions, Arrests, or Bad Acts: This motion is most commonly used in cases where the defendant already has a criminal record. A defense attorney will argue that mentioning prior convictions, arrests, or bad acts is prejudicial and will cause the jury or judge to already assume guilt despite the defense’s stance.
  • Motion to Dismiss the Case in the Interest of Justice: There are certain cases where, despite guilt or innocence, continuing with the trial would not be in the interest of justice. For example, if a disabled and unemployed person with no prior record was caught stealing food for his or her starving children, a defense attorney may file this motion. 

When a defense attorney files a motion, they often include a request for a pre-trial hearing. Why add another hearing to the litany of steps in the New York criminal case process? In short, when a motion is filed, the defense’s rationale and argument are included in the paperwork. However, this paperwork may not always provide sufficient explanation. To better address this, the defense will request a pre-trial hearing to argue their stance in person. Whether a pre-trial hearing is held or not, the judge has the final say. They may grant or deny the motions based on the law and arguments they are presented with.

The pre-trial discovery and motion practice phase of your criminal case is where your defense attorney begins to work his or her magic. It is also where they begin to fully realize the evidence to be used against you in your trial. Additionally, it is when your defense attorney gets their first stab at diminishing the case against you through the use of various motions. Having an experienced, reputable and skillful criminal defense attorney representing you from the start is important. Seasoned defense attorneys, like Michael H. Ricca, can assess the impact of each piece of evidence and have the experience to recognize what motions should be filed on your behalf.

Now that you understand the discovery and motion phase, you likely have questions regarding the four types of suppression hearings mentioned above. If so, join us next week as we explain these important hearings in depth.

If you or a loved one has been arrested, contact our attorneys at The Law Offices of Michael H. Ricca, P.C. at (516) 500-1647 once you are able to do so for your free telephone consultation or visit us online at and complete our legal consultation form.

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