Common Motions And Authority In Criminal Law Cases

In Review of the 6th Edition, December 2020 Trial Law Notebook published by the Department of Public Advocacy we thought it would be prudent to share with some of our cleitns the "Common Motions And Authority" filed and raised in criminal law cases. Below is a list of common motions, the authority, and some of our thoughts regarding the motions: 

Arraignment:

  • Motion to Dismiss Charges, Double Jeapardy, US 5th Amendment, KY Section 13, KRS 505.
  • Motion to Dismiss Charges, Lack of Probable Cause on Citation, RCr 3.02(2) While Apollo Law beleivs such motions SHOULD be granted and these motions are filed somewhat regularly, as the Commonwealth may in some jurisdictions, commonly bring charges  alleging no crime what-so-ever. That said, some case law in the Commonwealth indicates such motions should be denied by the Court because of "Speration of Powers" arguments and that the proper time to address such issues is during "Directed Verdict Motions" at trial. However, waiting for such motions to be heard at trial for frivilous criminal cases is burdensome of Defendant's, the judicial system as a whole, and on tax payers. Often times these motions will force the Commonwealth to look at the weaknesses in their cases for the first time and may lead to a dismissal, an improved offer, or some other benefit. 
  • Motion to Dismiss Charges, No review for Probable Cause within 48 Hours
  • Motion to Dismiss Charges, Statute of Limitations, KRS 500.050
  • Motion for an Interpreter, KRS 30A.410
  • Motion for ROR Bond, RCr 4.10
  • Motion for Bond to be set at "least onerous conditions," RCr 4.12 Motion for an Adversarial Bond Hearing is the general motition filed in this instance. Typically only helps if there are good facts to support a bond reduction. 
  • Motion for Competency Evaluation, RCr 8.06
  • Motion to Advise Defendant of Rights under the Vienna Convention
  • Motion to Advise Co-defendants of Potential Conflicts, RCr 8.30(1) At Apollo Law we address such issues by either having clients sign Conflict Waiver Agreements or we refer potential clients out other reputable local attorneys when conflicts can not be waived. 

Representation:

  • Notice of Appearance and Assertation of Rights At Apollo Law we file such notices routinely in every case we are retained on and have time to file. Some clients hire us at the last minute before their court appearance and we have to suppliment the record with such filings after court. In practice, it is generally better to hire an attorney well in advance of a pending court date. It is important for all parties to know that you are represented and how best to contact your attorney. 

Preliminary Hearing:

  • Motion to Discharge Defendant, Proceed by Indictment Only, 10 Day Rule, RCr 3.10 By rule the Commonwealth has 10 days to conduct a preliminary hearing (probable cause hearing) in criminal cases after you are arraigned. The Commownealth has 20 days to hold a hearing if the Defendant is out of custody. Time can be, and is some times waived in these cases when it is in the Defendnat's best interest to do so. 

Grand Jury: 

  • Motion to Discharge Defendant, No True Bill, RCr 5.22
  • Motion to Discharge Defendant, Adjournment of Grand Jury, RCr 5.22 
  • Motion to Discharge Defendant, Faile to Indict within 60 Days, RCr 5.22
  • Request to Submit Evidence, RCr 5.08

Indictments: 

  • Motion to Quash the Indictment, RCr 8.20, RCr 6.06
  • Motion to Dismiss for Failure to State an Offense, RCr 6.10. RCr 8.18'
  • Motion to Dismiss for Lack of Jurisdiction, RCr 8.18
  • Motion to Dismiss, Impropper Venue, KRS 452.510 
  • Motion to Dismiss, Indictment Only Charges Misdemeanors, KRS 24A.110, RCr 5.20
  • Motion to Dismiss, Statute of Limitations Has Lapsed, KRS 500.050
  • Motion to Dismiss Chargess Used Twice to Enhance Other Charges
  • Motion to Dismiss, Double Jeopardy
  • Motion to Dismiss, Improper Transfer to Circuit Court, KRS 635.020 
  • Motion to Dismiss, Improper Automatic Transfer to Circuit Court, Aprendi v. N.J. 
  • Motion to Dismiss, Statute Unconstitutional, CR 24.03, KRS 418.05 Must be served on the Attorney General As Well
  • Motion to Dismiss, Improper Formation of Jury Pool, Grand Jury, KRS 29A.040

Bill of Particulars:

  • Motion for Bill of Particulars, RCr 6.22

Multiple/Joined Counts:

  • Motion for Severance (of multiple counts), RCr 9.16, RCr 6.18, RCr 6.20

Co-Defendants: 

  • Motion for Severance (of the joined trial), RCr 9.16, RCr 6.18, RCr 6.20
  • Motion to Redact Statement of Co-defendant
  • Motion to Exclude Statement of Non-testifying Co-Defendnat, Crawford v. Washington

Change of Venue

  • Motion for Change of Venue, KRS 452.210, KRS 452.230

Recusal

  • Motion to Recuse, Judge, KRS 26A.015(2) Like all motions, this one should only be filed when you have a good faith basis for the motion and have evidence that the judge can not be fair and impartial in your case. 
  • Motion to Recuse, Prosecutor, KRS 15.733

Speedy Trial

  • Notice of Assertion of Right to a Speedy Trial, 6th Amendment, Ky Constitution Section 14
  • Motion to Dismiss for Lack of Speedy Trial, see also KRS KRS 500.110 and KRS 440.450

Jury Trial:

  • Motion for a Jury Trial in Petty Offenses, KRS 29A.270(1), RCr 9.26(1) 

Bench Trial: 

  • Motion for a Bench Trial/Waiver of Jury Trial, RCr 9.26(1) 
  • Motion to Dismiss (directed verdict), CR 41.02(1)

Adversarial Bond Hearing:

  • Motion for Adversarial Bond Hearing, RCr 4.40(1)

Suppression of Evidence:

  • Motion for Suppression Hearing, RCr 8.27, 8.18, KRE 104(c)

Evidence:

  • Motion to Preserve
  • Motion to Inspect Evidence Held by the Commonwealth
  • Motion for Defense Testign of Evidence

Continuance:

  • Motion for Continuance w/Affidavit, Showing Due Dilligence, RCr 9.04
  • Motion for Continuacne, Discovery Violation, RCr 7.24(9)
  • Recognizance of Witnesses, RCr 3.20

Discovery: 

  • Discovery Inventory 
  • Motion to Opt Out of Automatic Reciprocal Discovery As Normally Ordered by the Court 
  • Motion to Compel Discovery, RCr 7.24
  • Motion to Dismiss for Discovery Violations, RCr 7.24 (9) 

Depositions:

  • Motion to Depose Witness, RCr 7.06, et seq.

Witnesses:

  • Motion to Close Proceedings
  • Motion to Seperate Witnesses under The Rule, KRE 615
  • Motion for Competencey Hearing, KRE 601, 602 It can take up to half a year or more to have a defendant evaluated by KCPC which the Commonwelath is entitled to ask for if competency issue is raised. Private experts may also be retained to evaluate competency and criminal responsibility and tend to better inform the Defense team

Experts:

  • Ex Parte Motion for Funds, KRS 31.185
  • Motion for Daubert Hearing

Competency:

  • Motion for Competency Evaluation, RCr 8.06
  • Motion for Defense Expert
  • Ex Parte Motions for Funds, KRS 31.185

Counselling Records:

  • Motion for in camera Review of Counselling Records

Motions In Limine:

  • Motion to Exclude on Grounds that Evidence Will not Help the Jury Find the Truth, Will be Needlessly Repetitive, Mislead or Confuse the Jury, Unduly Predjudicial, KRE 102, KRE 611(a), KRE 403
  • Motion to Exclude Hearsay, Improper Bolstering
  • Motion to Exclude Social Worker Hearsay
  • Motion to Exclude Investigative Hearsay
  • Motion to Exclude Hearsay in the Form of Prosecution Charts or Exhibits
  • Motion to Exclude Co-Defendant hearsay, Crawford v. Washington
  • Motion to Redact Hearsay on Audio or Video
  • Motion to Exclude Prosecution Transcripts of Audio or Video
  • Motion to Exclude Improper Rebuttal Evidence, RCr 9.42
  • Motion to Require Commonwealth to Elect Charges (double enhancement)

Avowals:

  • Motion to Make an Avowal, KRE 103(a) (2) 

Jurors

  • Motion to Dismiss Improperly Formed Jury Pool, KRS 29A.040
  • Motion to Strike, RCr 9.36(1), KRS 29A.290(2)(a)
  • Motion for Additional Defense Peremptory Strikes, RCr 9.40, KRS 29A.280(1)
  • Batson Challenge to Prosecution Use of Peremptory Strikes
  • Notice of Jurors Defense Woukd have Struck with Peremptories if Other Jurors Had Been Properly Struck for Cause (Must be on Strike Sheet)
  • Motion to Sequester, RCr 9.66
  • Motion to Transfer Jurors to Crime Scene
  • Motion to Vire Dior Juror on Improper Contact with Witnessses, KRS 29A.310(2)
  • Motion to Poll the Jur, RCr 9.88

Directed Verdict:

  • Motion for Directed Verdict, End of Prosecution Case, permitted, CR 50.01 We prefer to file these motions in writing when possible. Often times they are made orally during the trial if there is no opportunity to prepare written motions during the trial before the close of the Commonwealth's evidence
  • Motion for Directed Verdict, End ofAll Evidence, madatory, CR 50.01
  • Objection to Giving Instructions on greater Charge when Proper Charge is lesser Included Offense and Defense Tenders Instructions on Lesser Included Offense
  • Motion for Judgment Notwithstanding the Verdict, RCr 10.24 (a renewed motion for directed verdict, within 5 days of verdict)

Instructions:

  • Presumption of Innocence (madatory), RCr 9.56(1)
  • Motion to Instruct on Defendnat Not testifying, RCr 9.54(3)

Sentencing:

  • Motion for Directed Verdict, PFO, CR 50.01
  • Motion for Waiver PSI, Defendant in Custody, RCr 11.02(1)
  • Motion to Amend PSI, KRS 532.050(6)
  • Motion to Inspect Victim Impact Statements, RCr 7.26
  • Motion to Specify the Defendant is Not a Violent Offender or Offense Did not Include Serious Physical Injury, KRS 439.3401(1)

Judgments:

  • Motion to amend Judgment, Cr 60.01

New Trial:

  • Motion for New Trial, RCr 10.06, CR 59.01, CR 60.02

Appeals:

  • From District Court Ruling on Bail, RCr 4.43(2), KRS 419
  • From District to Circuit, CR 72
  • From Circuit Court Ruling on bail, RCr4.43, CR 76.06, CR 76.12
  • Motion to Stay Execution of Sentence, RCr 12.76
  • Motion for Bail, RCr 7.28
  • Motion/Order to Proceed in forma pauperis, KRS 453.190, KIRS 31.110(2)(b)
  • Notice of Appeal, RCr 12.04
  • Motion for Extension of Tiem, CR 73.08
  • Designation of Record
  • Motion to Photograph large Exhibits for Appelalte Record, CR 75.07(3)

Juvenile: 

  • Motion to Proceed under Rule of Criminal Procedure, KRS 610.015(1)
  • Motion to Exclude Persons from Proceedings, KRS 610.070(3)
  • Motion for a Jury Trial
  • Motion for Review of DJJ Custody
  • Motion to Waive Disposition 
  • Motion for Competency Evaluation, RCr 8.06
  • Ex parte Motion for Funds, KRS 31.185
  • Apperal of District Court Dispostion, KRS 610.130

Habeas Corpus:

  • Petition for Writ of Habeas Corpus Seeking Release of Individual Detained without Due Process, KRS 419

Writs of Prohibition, Mandamus:

  • To Circuit Court Against District Court, CR 81
  • To Court of Appeals Against Circuit Court, CR 76.36
  • Against Custodians of Prisoners of Hospitals, KRS 419, KRS 202A.151
  • Against an Administrative Body, CR 81

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