6. PRETRIAL MOTIONS
Great trial lawyers file lots of motions at all stages of the proceeding. Great trial lawyers file motions to get information upon which to base other motions. The reasons for an active motions practice are varied, but can be found in two very good reasons.
1. Every motion, for which there is a hearing and order, provides the trial judge with an opportunity to commit reversible error.
2. If you cannot win the case, f *** up the docket. File lots of motions. Never go for "open file" discovery or hand shake Brady. Files motions and get hearings. A. Discovery Rule 3A:14 governs discovery in Virginia. It should always be filed in a criminal court. Informal discovery is stupid and if you find it attractive you are lazy and probably lost a lot of trials but get a lot of plea bargains. Always request: Statement of the defendant. Note do not ask for the statement of witnesses. Everyone in the courtroom who knows what they are doing will assume your were born to stupid people and stolen as a baby and you will be mocked by judge and opponent alike.
Laboratory reports
All opinion evidence and examination of exhibits information should be requested, such as laboratory reports, fingerprints, mass spectrometer, paraffin or neutron activation analysis, perk kit, blood saliva, chemist, firearm, and burglary tool comparisons. All should be requested if appropriate for the case. Just because you know they were not done is no reason to withhold the request. Jurors get upset if they have a doubt and an unperformed lab test could have removed that doubt. "You mean there is a est that could have told us scientifically whether this defendant fired a gun and you did not even take the time to conduct it?" Criminal record of the defendant. You must know the defendant's criminal record as understood by the Commonwealth. Even if you client has never been convicted of a felony, any discrepancy in trial can permit the prosecutor to fully discuss the record. Find out pretrial what they allege and if there is a discrepancy, proceed with a motion in limine.
Criminal record for witnesses.
While usually not given pretrial, it should be in the court room available for examination prior to cross. Remember that, unlike a defendant, a witness can be asked for the offense for which he has previously convicted. If not tendered in general discovery, make a specific Brady request remembering that credibility is always an issue.
Brady Motion.
Generic Brady requests for any evidence which arguably negate the guilt or mitigate the punishment of the defendant is worthless. Brady requests should be specific, particularly in light of your defense. "The witness has identified the defendant as the person who committed the robbery in this case. The defendant requests any identification information, whether contained in 911 records, dispatch records, police interview notes or within the recollection of a witness which is different from the description of the defendant in height, weight, skin color, clothing or hair, etc." Further, remember credibility issues of witnesses in swearing matches and statements inconsistent with preliminary hearing testimony. "The witness testified during preliminary that the weapon was never directly pointed at her person. We would request the tender of any and all information of the witness which is inconsistent with that assertion."