Motions Practice – Rule 12
The following defenses, objections, and requests must be raised by pretrial motion before trial if
then basis for such motions is then reasonably available and can be determined without trial on
merits. For example, motion alleging a defect in instituting a prosecution such as (i) a violation
of the constitutional right to speedy trial (ii) selective or vindictive prosecution (iii) an error in
the grand-jury proceeding or preliminary hearing, a defect in the indictment or information
including improper joinder and failure to state an offense, suppression of evidence, severance of
charges or defendants under Rule 14, and discovery under Rule 16. Failure to file this motion
during pretrial means motion is “untimely.” If this is so, issue may be “waived” – court may not
consider it a tall, or issue may be “forfeited,” which means court may consider it under more
burdensome standard. These standards for “untimely” motion still allow for an exception. For
example, you can get a relief from untimely motion if you show “good cause.”
Depositions
The purpose of depositions is to preserve testimony for a trial. Under this rule, no deposition is
allowed as a “matter of course.” Furthermore, you cannot depose a defendant without his consent.
Defendant’s Trial Rights in Criminal Trials
Defendant has a right “to be confronted with adverse witnesses” (6A) including being in physical
presence of witnesses and right to cross examine adverse witnesses. D has a right to use
compulsory process for obtaining witnesses in his favor (6A). D has a right to a jury trial (Article
III and 6A).
JURY
Importance of Jury Trial
This right is incorporated against States through the due process clause of the 14th Amendment if
the right is “fundamental principles of liberty and justice which lie at the base of all our civil and
political institutions,” “basic in our system of jurisprudence,” “a fundamental right, essential to a
fair trial.” Rules relevant to the jury trial are different when applying to federal or States. For
States, number of juries can be as low as six. Under six would be violation of ….. Coupled with
this requirement is that jury decision does not have to be unanimous. For example, it can be 10-2
or 9-3. On the other hand, jury rules related to federal proceedings require 12 juries to be sitting
in a trial and the decision has to be unanimous.
Jury Selection Process