Motion for Discovery

 A defendant may request discovery, or information showing what evidence the state has against them. The exchange of information ensures a fair trial and goes hand in hand with the defendant’s right to confront witnesses.

Motion for Deposition

Either party may request to interview a potential witness under oath prior to trial to find out what will say at time of trial or to ask them about inconsistencies if they change their story at trial. 

These are not open to the public and may not occur at the courthouse. If a transcript of a deposition is made part of the court file, anyone can request a copy at their own expense.

 The Pre-Trial Conference

This is where the judge meets with attorneys, either in court or in chambers, to discuss an upcoming trial (when it will be ready for trial, what motions they anticipate filing before trial, how long a trial will last, etc.). It’s not uncommon to have several before a case goes to trial. Often a date is set for trial or a plea date may be set if a deal has been reached. In some cases, a defendant may enter a plea at a pre-trial conference.

Whether it is held on or off the record, an order with the next court date should be available online after on the JUSTICE system. 

NOTE: These can be important hearings since many cases are settled at pre-trial conferences. 

Motions in Limine & Motions to Suppress

Both the state and the defense can file motions in limine asking a judge to limit evidence from being submitted or a motion to suppress can be filed asking a judge to prevent certain evidence the other side wants to offer from being presented at trial. 

A motion in limine may seek to limit the testimony of a witness and restrict what they can testify about. For instance, the state may ask a judge to prevent the defense from asking the accuser in a sexual assault case about prior sexual experiences, unless a judge deems the information relevant.

A motion to suppress requests the court disallow certain evidence if it was obtained unlawfully or by violating a defendant’s rights. For instance, a judge can agree to suppress a statement a defendant gave law enforcement if police didn’t read them their Miranda warnings first explaining their right not to incriminate themselves. Or a judge can suppress evidence obtained because police stopped a car and searched without probable cause to believe a crime was committed.

404 & 414 Motions

In some cases, the state may seek to use evidence of prior bad acts (404) or prior sexual acts (414) at trial. A judge considers the evidence at a hearing outside the presence of a jury. Defense attorneys can fight the move, arguing it is inadmissible character evidence that would be prejudicial to their client and should be excluded.

Motions for Competency vs. insanity defense

If there are concerns that a defendant may not be mentally competent to stand trial, the defense attorney, prosecutor or judge can raise the issue, prompting an evaluation by the Lincoln Regional Center or, if the person isn’t in custody, by another mental health professional. Evaluators consider whether the person understands the court proceedings and can assist in his/her own defense. 

If a judge finds a defendant not competent, the defendant may be ordered to stay at the Regional Center for staff to work with them to restore their competency. A judge reviews the case every six months until finding the person has been restored (so the case can proceed to trial) or is not restorable (and the case is dismissed). If a case is dismissed for this reason, the prosecutor can seek to have the person civilly committed to the regional center. 

Competency is different than an insanity defense, which is quite rare. A person charged may plead that he or she isn’t responsible because they didn’t know right from wrong due at the time of the crime. And the burden is on the defense to prove it through expert testimony.

If a defendant is found not responsible by reason of insanity, an evaluation is done to determine if the person is a danger to him or herself or others. Often this results in the defendant being committed to the Lincoln Regional Center and to yearly reviews by the judge. 

Motions to Discharge

Continuances by a defendant and defense motions, like motions to suppress or to determine competency, “stop the clock” and are subtracted from the six-month deadline. If the defense can prove to a judge that the state hasn’t brought the person to trial within six months, the case is dismissed. They can only raise this issue before a trial.

Revised 1/2019