Blog
Federal Pretrial Motions That Can Strengthen Your Defense
Most federal criminal cases are resolved before the jury is seated. The pretrial motion, filed in writing, argued before a judge who has read every word, is where the actual contest occurs. What the jury sees at trial, if the case reaches trial at all, is a version of events already shaped by the motions process: evidence that was challenged and upheld, witnesses whose credibility has been tested in a suppression hearing, an indictment whose sufficiency was weighed and found adequate or was never weighed at all because the defense did not raise the argument in time.
Rule 12 of the Federal Rules of Criminal Procedure imposes this architecture. Certain defenses and objections must be raised by pretrial motion, and the failure to raise them constitutes waiver. There are exceptions, though in practice they tend to confirm the rule. The court retains discretion to consider an untimely motion for good cause, but good cause is a standard that punishes delay, and the judge who grants it is extending a courtesy, not recognizing a right.
The Motion to Suppress Evidence
In the Southern District of New York, in the Eastern District of Virginia, in districts where federal prosecutors construct their cases from the products of wiretaps, searches, and digital surveillance, the motion to suppress is the central pretrial event. It is, if we are being precise, not merely one motion among several but the motion on which the government’s case most often depends.
The Fourth Amendment prohibits unreasonable searches and seizures. When evidence is obtained in violation of that prohibition, the exclusionary rule requires its suppression. The defense files the motion under Rule 12(b)(3), identifying the specific evidence to be excluded and the constitutional basis for exclusion. If the facts are disputed, the court conducts an evidentiary hearing. The government bears the burden of demonstrating that the search or seizure was lawful.
The most common grounds are familiar: a warrantless search that does not fall within a recognized exception, a warrant that lacks probable cause, a search that exceeded the scope of the warrant. Each requires a distinct factual record and a distinct legal argument. The attorney who files a suppression motion as a single document covering all three has accomplished less than the attorney who files three separate, narrow motions with individualized factual support.
In 2018, the Supreme Court issued Carpenter v. United States and altered the calculus for digital evidence. The Court held that the government’s acquisition of historical cell site location information constitutes a Fourth Amendment search, requiring a warrant supported by probable cause. The Court declined to extend the third party doctrine to cover what it described as an intimate and revealing chronicle of a person’s movements. Before Carpenter, prosecutors obtained cell site records through a court order under the Stored Communications Act, which demanded only a showing of reasonable grounds. After Carpenter, the warrant requirement applies, and the failure to obtain one opens the door to suppression.
What Carpenter left unresolved is at least as significant as what it decided. The opinion describes its own holding as narrow, declining to address real time location tracking, tower dumps, or other forms of digital surveillance that did not present themselves on those facts. Whether the Court intended to cabin the ruling or merely to preserve questions for future litigation is a matter worth considering.
Lower courts have applied the reasoning with varying degrees of enthusiasm. Some have extended the logic to other categories of digital data. Others read the decision as limited to historical cell site information and decline to go further. The practical consequence for defense counsel is that every case involving digital evidence now presents a suppression argument. The question is not whether to file the motion but whether the factual record supports it with enough specificity to survive the government’s response that the search fell within an established exception or that the evidence would have been discovered regardless.
We approach suppression motions with the assumption that the evidentiary hearing is the objective, not the motion itself. A written motion can be denied on the papers. A hearing forces the government to place its witnesses on the stand, where their testimony can be tested.
That distinction, which sounds procedural, is in practice the distinction between a motion that functions as a formality and one that functions as a litigation event. It resembles, in a way that is perhaps too specific to be useful, the difference between reading an architect’s blueprint and walking through the unfinished structure: both describe the same thing, but only one reveals what the blueprint concealed.
Challenging the Warrant Affidavit
When evidence is seized pursuant to a search warrant, the defense is not limited to arguing that the warrant lacked probable cause. Under Franks v. Delaware, a defendant may challenge the truthfulness of the affidavit that supported the warrant itself.
The threshold is demanding. The defense must make a substantial preliminary showing that the affiant included a false statement knowingly and intentionally, or with reckless disregard for the truth, and that the false statement was necessary to the finding of probable cause. Negligence and innocent mistake do not suffice. The showing must be supported by affidavits, sworn statements, or a satisfactory explanation for their absence.
If the court grants the hearing, the affiant can be questioned. The process reveals details about the investigation that are otherwise inaccessible: the reliability of the informant, the scope of the surveillance, the decisions made about what to include in the affidavit and what to omit. An officer who overstated the reliability of an informant in the affidavit may have done the same elsewhere in the case. An affidavit that omitted exculpatory information (and courts have extended Franks to material omissions, not merely affirmative falsehoods, though the standard for omissions remains somewhat unsettled in certain circuits) suggests a pattern of selective presentation that the defense can develop at trial.
Three Franks motions in the past year, all in cases involving cooperating witnesses whose reliability was overstated in the warrant application, produced evidentiary hearings in our practice. Not all resulted in suppression. All of them produced information the government had not disclosed on its own.
The Debt the Government Owes Before Trial
The prosecution must disclose all evidence favorable to the defendant that is material to guilt or punishment. Brady v. Maryland established this obligation. Giglio v. United States extended it to impeachment material. The constitutional requirement is not a discretionary courtesy, though one would be forgiven for occasionally confusing the two.
The difficulty is enforcement. The prosecution determines what is favorable. The prosecution determines what is material. The defense, by definition, does not know what it has not received. Defense counsel must therefore file motions specific enough to compel the government to disclose and to obtain orders that set enforceable deadlines.
A general request for “all Brady material” is constitutionally sufficient but achieves little in practice. The motion that produces results identifies categories of information the defense has reason to believe exist: prior inconsistent statements of cooperating witnesses, benefits conferred in exchange for testimony, complaints against officers involved in the investigation, forensic reports that were generated but not included in the discovery production, and whatever other material the particular facts of the case suggest might be in the government’s possession but outside its voluntary production. Specificity is the mechanism by which the defense converts an abstract obligation into an actionable one.
In the District of New Jersey and in several other districts, standing discovery orders require the government to disclose Brady material by a date certain. Where no such order exists, the defense must request one. The motion should describe, with whatever particularity the facts permit, the categories of material sought and the basis for believing they exist. A judge who has been given a reason to suspect nondisclosure is more likely to issue an order that carries real consequences than one who has been asked to enforce a general principle.
I am less certain about the optimal timing of these motions than the preceding paragraphs might suggest. Filing too early, before the contours of the government’s case are visible, produces a motion that is vague. Filing too late forfeits the opportunity to use the material in preparing for trial. The balance depends on the case, the judge, and the rhythm of discovery in the particular district.
Severance Under Rule 14
Federal prosecutors prefer joint trials. Multiple defendants tried together allow the government to present its case once, to benefit from the spillover of evidence where testimony admissible against one defendant colors the jury’s perception of another, and to avoid the possibility that separate proceedings produce inconsistent results. Rule 14 provides the mechanism for relief when this preference produces prejudice.
The standard is discretionary. The court may order separate trials of counts or sever defendants’ trials if the joinder appears to prejudice a defendant. The burden falls on the defense to demonstrate that prejudice, which requires something more than the general inconvenience of sharing a courtroom. Antagonistic defenses, where one defendant’s theory implicates another, provide the clearest ground. Spillover evidence provides the most common argument. Bruton problems, involving the admission of a nontestifying codefendant’s confession, require either severance or redaction.
The motion is difficult to win. Courts cite judicial economy and prosecutors argue that limiting instructions are an adequate remedy. In a conspiracy case with nine defendants (which is the kind of case the federal system produces with some regularity, given the government’s appetite for expansive indictments), the judge has an institutional incentive to consolidate.
But the motion is worth filing even when the prospect of success is modest. The briefing forces the defense to articulate its theory with a clarity that proves useful later, even if the severance itself is denied. The record it creates preserves the issue for appeal.
Timing and Procedural Requirements
The waiver problem is the one that receives the least attention and causes the most damage. Rule 12(b)(3) requires that suppression motions, challenges to the indictment, severance requests, and discovery disputes be raised before trial. The court sets a deadline at the pretrial conference. The deadline is enforceable.
A defense attorney who identifies a suppression issue after the motion deadline has passed faces a different question entirely. The inquiry is no longer whether the search was constitutional. The inquiry is whether there is good cause for the late filing. The substantive merit of the argument becomes secondary to the procedural question.
The pretrial order entered under Rule 17.1 establishes the motion schedule, the response period, the reply period, and the date for any evidentiary hearing. Defense counsel who treat this order as advisory discover the consequences only when a judge declines to hear a meritorious argument because it arrived too late.
We file our motions before the deadline. This should not need to be stated, but the practice of filing everything on the final day, particularly in cases with heavy discovery, is more common than it should be. The motion papers tend to reflect the haste. A motion filed with time remaining can be supplemented as discovery continues to arrive. A motion filed on the deadline itself, in our experience, leaves no room for that revision.
The pretrial phase is not a prelude to the trial. It is the proceeding. Every suppression hearing that reveals an unlawful search, every Brady order that compels the disclosure of impeachment material, every severance that isolates a defendant from the prejudice of a codefendant’s conduct reshapes what follows. The motions determine what evidence the jury will hear, what arguments the defense can present, what version of events will be offered as the government’s case.
There is a particular silence in a federal courtroom after a suppression motion is granted, before anyone speaks. It is the silence of a case that has just changed shape.
The assessment begins with a first call, which costs nothing and assumes nothing.