We employ an aggressive pretrial motions practice and it has proven to be indispensable in our ability to win so many of our cases at or before trial.
Georgia law provides that the prosecution must disclose to the defense the identity of their witnesses, all of the witnesses’ statements, all documents and physical evidence relating to the case, as well as the results of any scientific tests relating to the case. The Constitution also requires them to disclose any evidence that is exculpatory (meaning evidence that is consistent with our client’s innocence).
Problems arise, however, when there is additional evidence that may exist, that the prosecution is not required to disclose, that the defense cannot easily obtain. For instance, in cases where there is an alleged victim, we may want to obtain privileged information about the person’s past that would otherwise not be available to the public. Also, many times the prosecution will collect physical evidence from an alleged crime scene but refuse to test it. Perhaps, this physical evidence could help prove our client’s innocence.
In order to gain access to privileged records or untested physical evidence collected by the State, particularized discovery motions must be filed and addressed in court. These motions must be filed well in advance of trial in order to provide us with sufficient time to collect and examine the items. Often, the prosecution will object to this additional discovery, therefore, we must be prepared to argue these motions in court.
In addition to the extensive set of discovery motions that would be filed in any criminal case, sex offense cases often give rise to particular legal motions that are unique to these cases. For instance, we will typically want to obtain information about the accuser’s psychological history or know if he/she has been previously investigated by DFCS. These types of records are privileged and can only be obtained with a court order.
Also, in cases involving an alleged injury to a child, we have the right to request a pretrial deposition of the treating physician. This is a critical right that is often overlooked by defense attorneys in Georgia. We have obtained dismissals in child molestation cases as a result of these depositions as we are able to uncover other causes of a child’s apparent injuries (click here for an example).
Many cases that would normally be difficult to win at trial are dismissed as the result of successful motions to suppress illegally seized evidence. Any evidence obtained as a result of an illegal search, an illegal detention or arrest, or an illegal interrogation may be suppressed. In many cases, the inability to use the illegally seized evidence will force the prosecution to dismiss the case. While this is a very common tactic in drug cases, we have been successful in suppressing critical evidence in child pornography cases as well as many other types of sex offense cases.
Illegally seized evidence, however, does not get suppressed on its own. The defense must be aggressive and file well drafted motions seeking the suppression of this evidence. Many times, these issues are discovered early in the case at a preliminary hearing where carefully crafted questions to the arresting officers can disclose defects in their search, arrest, or interrogation procedures.
A defendant in a criminal case has the absolute right to an indictment that is perfect in both form and substance. A demurrer is a motion that we file alleging that there is a defect in the indictment or attacking the constitutionality of the statute which forms the basis of the indictment.
In child molestation cases, the prosecution will normally allege that an offense was committed during a wide range of dates as opposed to pinpointing a precise date. Through the use of demurrers, we have been successful in obtaining the dismissal of many sex offense indictments (see our Results for examples).
In some cases, the prosecution will be permitted to re-indict the case. Georgia law provides, however, that if two indictments are dismissed as the result of successful demurrers, the State is prohibited from seeking a third indictment. Therefore, it is crucial that we uncover and address any potential defects in our indictments as this provides us with yet another way of achieving a dismissal before trial.
In cases that receive media attention, it is important that we determine whether we need to file a motion to change venue as it may help us receive a jury pool that has not already been tainted by pretrial publicity.
We are also able to achieve dismissals in many other circumstances, including cases involving violations of the statute of limitations, on double jeopardy grounds and for violations of our client’s right to a speedy trial.