CHAPTER 9

PRETRIAL MOTION PRACTICE

§ 9.01 The General Requirements - Necessity of Filing; Timing

§ 9.02 - Formal Requirements; Service

§ 9.03 Waiver

§ 9.04 The Right to a Hearing and Findings

§ 9.05 The Right to a Decision

§ 9.06 The Duty to Renew

§ 9.07 Stipulations Instead of Motions

§ 9.01

The General Requirements -

Necessity of Filing; Timing

At the Rule 5 hearing the judge issues a form scheduling order setting the date for the first status conference (no earlier than twenty-eight days after arraignment){1} and specifying, among other things, when pretrial motions have to be filed.{2} In the absence of a scheduling order, motions must be filed before the status conference or, if no status conference is held, within twenty-eight days after arraignment.{3}

If an issue can be decided before trial it may be raised by pretrial motion,{4} and generally must be. Rule 12(b) lists five categories of claims that have to be raised before trial: (1) challenges to "the institution of the prosecution,"{5} which include "irregularities in obtaining the indictment or information, improper selection of the grand or petty jury . . . , and noncompliance with the rules in preliminary proceedings";{6} (2) challenges to the indictment or information (except for jurisdictional defects),{7} including "misjoinder and defects of form" and probably also duplicity and multiplicity;{8} (3) motions to suppress illegally obtained evidence, including the products of illegal searches and seizure, confessions, and evidence obtained by other illegality;{9} (4) requests for discovery when requests are required under the discovery rules;{10} and (5) requests for severance of offenses or defendants.{11} Motions to dismiss for lack of a prima facie case must also be made before trial,{12} by the same deadline.{13}

But this listing is not exhaustive. Besides the matters listed in Rule 12(b), the failure "to raise any other pretrial errors or issues of which the party has knowledge" by timely pretrial motion will be considered a waiver (except as otherwise provided and subject to constitutional limitations).{14} Therefore, even those claims which Rule 12 does not specifically itemize are likely to be waived if they are not raised by pretrial motion.{15}

The safe rule of thumb is (1) to make the motion before trial, by the Rule 12(c) or scheduling order deadline, unless the rules affirmatively permit something different; and (2) when reasons for a motion develop later (e.g., a motion to dismiss for lack of a speedy trial, or where grounds are learned through discovery) to make the motion as soon as the grounds become known.

The exceptions - the motions that the rules and case law explicitly exempt from the requirement of a pretrial motion - include claims that the court lacks jurisdiction (but not merely that the information fails to allege jurisdiction){16} and that the information fails to state the essential statutory elements of a crime.{17}

§ 9.02

- Formal Requirements; Service

Rule 47 prescribes the form for all motions. Motions, except those made in the course of a hearing or trial, must be in writing, must "state the grounds therefor, including a concise statement of the facts and law relied on, and shall set forth the relief or order sought."{18} Some courts, by local practice, require a supporting memorandum of law.

The rules do away with claim-specific pleadings (e.g., demurrers to the charge; pleas in bar based on double jeopardy claims), prescribing the pretrial motion as the vehicle for all claims.{19} Titles are optional and descriptive. Motions challenging the information or otherwise questioning the basis of the prosecution will generally seek dismissal and should be entitled motions to dismiss. Motions alleging that evidence has been illegally obtained will generally ask for suppression and should be entitled motions to suppress. Motions addressing other evidentiary or procedural matters are often called motions in limine.

A motion in limine can ask for an order excluding evidence which the other side is going to offer, or preventing anticipated tactics or arguments; or it can seek advance approval of evidence which the movant wants to introduce at trial, or tactics he or she intends to use. Of course, the rules do not require a pretrial motion for every conceivable trial issue.{20} There can be advantages in bringing trial issues to a head early in the process by a motion in limine: it can settle evidentiary points in time for voir dire, keep prejudicial material entirely out of the case, and avoid arguments and interruptions in front of the jury. On the other hand, the party who pretargets a potential issue by pretrial motion may lose flexibility and the advantage of tactical surprise.

A party opposing a written motion must respond with a written memorandum in opposition within ten days after service.{21} The motion and the response can both be supported by affidavits.{22}

Because the research facilities of local courts are often minimal, some judges ask counsel to attach photocopies of any out-of-state authority cited.

If oral argument is desired, the papers should explicitly request it; failure to request argument may be deemed a waiver.{23}

All written motions and memoranda must include the signature and address of the lawyer (or pro se litigant), which serves as a certification that legal claims and factual allegations have been made in good faith.{24}

The papers must be served, personally or by mail, on the lawyer for the other side and on counsel for any codefendants (or on the parties themselves if unrepresented).{25} The attorney's signature on the motion constitutes a representation of service, and no separate certificate of service is necessary.{25.5}

§ 9.03

Waiver

When a claim must be raised by pretrial motion, failure to do so will be considered a waiver "except as otherwise provided" by the rules and "subject to constitutional limitations. . . ."{26} This is not to say that a late motion cannot or should not be filed or that a judge cannot or should not consider it; the court has ample discretion "for cause shown [to] grant relief from the waiver."{27} But the judge also has a free hand not to; the Vermont Supreme Court routinely declines review of issues deemed waived under Rule 12(f) and will find waivers not only when a motion is not made at all, but also when it is not made in a timely fashion, when the pretrial motion does not raise the precise grounds later argued on appeal,{28} and when it is made but not renewed at trial.{29} Rule 12(f) makes no distinction between constitutional and nonconstitutional claims, and the Vermont Supreme Court makes no distinction either, unless an argument can be made that the particular claim had to be, and was not, knowingly and intelligently waived.{30} It has found waivers even in connection with claims of incompetency.{31}

a. State Constitutional Claims

It is generally good enough, for preservation purposes, simply to state a claim without a great deal of legal elaboration, but the Vermont Supreme Court has sometimes insisted on more for claims under the state constitution. The defendant in State v. Maguire{32} moved in the trial court for suppression of evidence on state and federal constitutional grounds, but, although he cited the applicable state constitutional provision, his memorandum "failed to discuss" the state constitutional claim.{33} Maguire and subsequent cases{34} therefore require more than a simple statement of the state constitutional claim,{35} and, if the decisions can justifiably be criticized as procedural cop-outs in difficult cases, the message to lawyers is clear: state constitutional arguments, to be preserved for review, should be presented as thoroughly as possible to the trial court.

§ 9.04

The Right to a Hearing and Findings

Judges can decide some motions on the papers filed, without a hearing or oral argument. When the decision of a motion depends on evidentiary issues, an evidentiary hearing is required;{36} the judge can deny a hearing only if no "bona fide" or "real" dispute about the facts exists.{37} If no evidentiary hearing is held, the judge can also dispense with oral argument, even if the parties request it.{38}

When factual issues are involved, the court must "state its essential findings[,]"{39} meaning its findings on all material facts,{40} even without a specific request to do so.{41}

§ 9.05

The Right to a Decision

Vermont's criminal rules, with their broad authorization for pretrial motions and discovery, generally favor resolution of as many issues as possible before trial. A party who raises an issue that can be decided before trial is therefore entitled to a pretrial decision, if delay would be prejudicial. In State v. Ritchie{42} the defendant moved to exclude proof of his prior convictions as impeachment of his testimony, requesting a ruling before trial to permit counsel to adjust his opening statement and voir dire examination of the jurors. The judge deferred the ruling until after the state had presented its case, and the Vermont Supreme Court reversed. "[W]here the defendant requests a ruling which will affect defense strategy from the very inception of the trial, and where there is no apparent reason to postpone the determination of the motion other than the desire to avoid a difficult issue, . . . the trial court should rule and the defendant should be entitled to rely on that ruling."{43} The judge must have a "justifiable reason" for not ruling,{44} and an insufficient development of the factual context constitutes such a reason.{45} A judge who is not prepared to rule may sometimes be prevailed on to give a tentative "weather report."

A decision not to decide - to defer ruling - does not excuse the lawyer from pursuing the matter. When the judge announces a tentative decision but leaves the door open for further advocacy, the lawyer must see to it that the ruling is "finalized" or he or she will be held to have abandoned the claim.{46}

§ 9.06

The Duty to Renew

Against the interest (vindicated in Ritchie) in pretrial rulings which the parties can rely on in their trial preparation and at the early stages of the trial, another line of cases stresses a need for flexibility. In State v. Senecal,{47} a judge denied the defendant's pretrial motion to suppress his confession, the case went to trial before a different judge, and the defendant failed to re-object to admission of the confession at trial. The Vermont Supreme Court held that the defendant waived his objection by failing to renew it, because the trial judge never had an opportunity to consider the issue, and because "pretrial rulings are tentative and subject to revision. . . ."{48} A failure to renew the pretrial objection will be interpreted as a waiver unless (a) "no new facts are adduced at trial" and (b) the same judge who denied the pretrial motion presides at the trial.{49}

Ordinarily, the court later explained, a pretrial ruling should not be disturbed. Senecal does not require the trial judge to reevaluate pretrial decisions made by a different judge, at least when the evidentiary picture is unchanged,{50} and reconsideration should be "the exception, not the rule."{51}

Ritchie's assurance that a defendant can "rely" on pretrial rulings must therefore be taken with a grain of salt. In general, rulings that go against the defendant are more subject to change than rulings that go in her favor. For example, a pretrial order excluding proof of the defendant's criminal record constitutes a "commitment" which may not be altered "unless it can be shown that, at the time a change in such a ruling is sought, the defendant has not taken any action in reliance on the ruling that would make its reversal prejudicial in the least degree."{52} The opposite ruling, that the record may be admitted, "is not so constricting" and can be changed more freely.{53}

Following Senecal the supreme court routinely finds waivers of pretrial claims when the defendant fails to renew them at trial,{54} although recent cases question the wisdom of the rule.{55} Because it can rarely be known that no new facts will be presented at trial, motions to suppress should be routinely renewed at the trial to avoid waivers under Senecal.

§9.07

Stipulations Instead of Motions

Much of the uncertainty and delay of pretrial motion practice can be eliminated if the parties stipulate. Stipulations in lieu of motions, or resolving pending motions, can be entered with binding effect at the status conference{56} or other pretrial conference.{57}

ENDNOTES

1. V.R.Cr.P. 12(e)(1).

2. See District Court Form 353, App. 31; See § 5.10, supra.

3. V.R.Cr.P. 12(c).

4. Rule 12(b) provides, "Any defense, objection or request which is capable of determination without the trial of the general issue may be raised before trial by motion."

5. V.R.Cr.P. 12(b)(1).

6. V.R.Cr.P. 12(b)(1), Reporter's Notes.

7. V.R.Cr.P. 12(b)(2).

8. V.R.Cr.P. 12(b)(2), Reporter's Notes.

9. V.R.Cr.P. 12(b)(3) and Reporter's Notes.

10. V.R.Cr.P. 12(b)(4) and Reporter's Notes. See § 24.12, infra.

11. V.R.Cr.P. 12(b). Specific rules for the timing of severance motions are set forth in V.R.Cr.P. 14(b)(4). See chapter 21, infra.

12. V.R.Cr.P. 12(d).

13. V.R.Cr.P. 12(d), Reporter's Notes to the 1982 Amendment.

14. V.R.Cr.P. 12(f).

15. These include motions which under earlier practice could have been deferred until trial, such as claims based on double jeopardy, res judicata, the unconstitutionality of a statute, immunity, and the statute of limitations. See Reporter's Notes to V.R.Cr.P. 12(b).

16. V.R.Cr.P. 12(b)(2); State v. Joy, 149 Vt. 607, 614-15 (1988).

17. State v. Kreth, 150 Vt. 406 (1988). See § 5.06, supra.

18. V.R.Cr.P. 47(a).

19. V.R.Cr.P. 12(a), Reporter's Notes.

20. Issues which may or may not surface, depending on contingencies which the party has no control over (e.g., evidence which the other side may or may not introduce) should not be deemed "pretrial issues of which the party has knowledge. . . ." V.R.Cr.P. 12(f).

21. V.R.Cr.P. 47(b)(1).

22. V.R.Cr.P 47(a),(b)(1).

23. V.R.Cr.P. 47(b)(2).

24. The signature certifies that factual allegations are supported on information and belief, that the relief requested is warranted either by existing law or by "good faith argument for extension, modification or reversal of existing law[,]" and that the motion has not been made for improper reasons, such as harassment or unnecessary delay. V.R.Cr.P. 49(d).

25. V.R.Cr.P. 49(a)(1),(b); V.R.C.P. 5(b).

26. V.R.Cr.P. 12(f).

27. V.R.Cr.P. 12(f).

28. State v. Clark, 152 Vt. 304, 308 (1989). See also State v. Kennison, 149 Vt. 643, 645 (1984).

29. See § 9.06, infra.

30. State v. Clark, 152 Vt. 304, 306-08 (1989); In re Raymond, 137 Vt. 171, 178 (1979).

31. State v. Senna, 154 Vt. 343, 346 (1990) (although defense counsel raised competency question before trial, if he wanted to "press the competency issue throughout the proceedings" he had to re-raise the issue at trial and sentencing).

32. 146 Vt. 49 (1985).

33. State v. Maguire, 146 Vt. 49, 54 (1985).

34. See State v. Robinson, No. 90-549, slip op. 9 (Vt. April 3, 1992); State v. Paquette, 151 Vt. 631, 636 (1989); State v. Hunt, 150 Vt. 483, 495 (1988); State v. Kettlewell, 149 Vt. 331, 334 n.1 (1987) (claim not raised "except by the passing mention").

35. Compare State v. Jewett, 146 Vt. 221, 229 (1985) (advocate has duty "to raise state constitutional issues . . . at the trial level and to diligently develop and plausibly maintain them on appeal").

36. State v. Allen, 145 Vt. 393, 395 (1985); V.R.Cr.P. 47, Reporter's Notes to the 1982 Amendment. A hearing is always required on a prima facie motion. V.R.Cr.P. 12(d); State v. Burnham, 145 Vt. 161 (1984). See chapter 10, infra.

37. State v. Senecal, 145 Vt. 554, 560-61 (1985); State v. Allen, 145 Vt. 393, 395 (1985).

38. V.R.Cr.P. 47(b)(2).

39. V.R.Cr.P. 47(c). See State v. Kelly, 136 Vt. 505 (1978); State v. Murray, 134 Vt. 115, 116 (1976).

40. State v. Comes, 144 Vt. 103, 108 (1984). In Comes the judge's denial of a motion to suppress a confession, without deciding whether the defendant had been promised leniency, was reversible error.

41. See In re J.R., 147 Vt. 7, 9-11 (1986) (distinguishing Rule 47's requirement from the civil practice under V.R.C.P. 52 (findings required only if requested)).

42. 144 Vt. 121 (1984).

43. State v. Ritchie, 144 Vt. 121, 123 (1984) (quoting State v. Ryan, 135 Vt. 491, 497 (1977)). V.R.Cr.P. 26(c) now requires advance notice of intent to use prior crimes and bad acts, allowing the defense to file objections before voir dire and opening statements "so that trial counsel may plan their voir dire and openings accordingly." Id., Reporter's Notes to the 1989 Amendment.

44. State v. Ritchie, 144 Vt. 121, 123 (1984).

45. State v. Savo, 150 Vt. 611-13 (1988).

46. State v. Emerson, 149 Vt. 171, 173 (1988); State v. Foy, 144 Vt. 109, 117, 118 (1984).

47. 145 Vt. 554 (1985).

48. State v. Senecal, 145 Vt. 554, 558 (1985) (quoting State v. Baldwin, 140 Vt. 501, 514 (1981)). See also State v. Bruno, 157 Vt. 6, 8 (1991).

49. State v. Bruno, 157 Vt. 6, 8 (1991); State v. Senecal, 145 Vt. 554, 558 (1985). Even if there has been no change in judges, "where serious grounds arise as to the correctness of a pretrial ruling" the judge should "receive evidence and reconsider the ruling." Bruno, 157 Vt. at 8.

50. State v. Zumbo, No. 90-073, slip op. 2 (Vt. Nov. 8, 1991).

51. State v. Zumbo, 157 Vt. 589, 591 (1991) (quoting State v. Bruno, 157 Vt. 6, 8 n.1 (1991)).

52. State v. Savo, 150 Vt. 610, 612 (1988).

53. State v. Savo, 150 Vt. 610, 612 (1988).

54. See, e.g., State v. Seifert, 151 Vt. 66, 72 (1989); State v. Jacques, 150 Vt. 508, 510 (1988) (waiver of search and seizure claim); State v. Jewell, 150 Vt. 281, 282 (1988); State v. Byrne, 149 Vt. 257, 260 (1988) (claimed violation of implied consent law).

55. See State v. Bruno, 157 Vt. 6, 11-13 (1991) (Dooley, J., concurring) (arguing that Senecal's preservation requirement should be overruled); Id. at 13-14 (Morse, J., dissenting) (Senecal

should not permit different judge to overturn pretrial ruling on unchanged facts).

56. V.R.Cr.P. 12(e)(2) ("unless set aside or modified by the court in the interests of justice").

57. V.R.Cr.P. 17.1.