| Chapter 1: Overview of Motion Practice |
1-1 Purpose and Structure of the Manual
This manual is intended to present sample motions which are most useful in a criminal defense trial-level practice in Michigan, along with suggestions on their use. It does not contemplate every possible motion at every stage of every proceeding. The manual is divided into four major sections: Pre-Trial Motions, Trial Motions, Sentencing Memoranda, and Post-Conviction Motions. Each section is then divided into a number of subsections which pertain to different motions commonly brought during that stage of the litigation. In each subsection we have included an introduction which attempts to outline the relevant legal issues with respect to that topic, along with some ideas for motion practice in that area. Following each introduction is at least one sample motion pertaining to that area.
1-2 Goals of Motion Practice
Our goal is to encourage trial attorneys to use motion practice creatively and aggressively. By aggressive, we do not mean frivolous or merely vexatious, but rather zealous, pro-active defense practice. Since a motion is merely an application for an order, it is a tool that can be used at every stage of litigation. Don't be limited by what motions you have brought in the past or by motions that are typically brought in your area. Any relief that you are entitled to but have not received you should ask for in the form of a motion. While motions can be brought orally during the course of a hearing or a trial, at all other times they must be brought in writing. And while there will be occasions during a hearing or a trial, when you will have to bring a motion orally because you could not have anticipated it, a written motion is almost always preferable.
A major reason for filing and litigating motions is to win them, of course. You hope that the confession will not come in, that the eyewitness will not be allowed to point the finger at your client, or that the hearsay about your client is not admitted at trial. And sometimes, you will actually win these motions. But often you will not win, and it can be discouraging to continue to file and litigate them, particularly in an unfriendly forum, or in spite of a large caseload.
Nonetheless, you should file any motion for which there is a good faith basis. You should do this because it is the right thing to do for your client, because it might just work, and very importantly, because it may indeed lay the groundwork for a successful appeal. If you fail to move to suppress or preclude improper evidence, you will have waived that issue for appellate purposes. Worse yet, if you don't do it in the right way, you almost certainly have insulated the error from federal review.
Of course, your motion practice will be informed by consultation with your client. She will provide facts to support potential motions. This is her case and she should be involved in the decision-making. This is particularly true when the decision to file a motion is a strategic one, which may have implications for your client beyond the scope of the motion.
1-3 General Principles of Motion Practice
1-3-a Form of Motion
A motion is an application to a court for specified relief. Unless made during a hearing or trial, it must:
1. be in writing;
2. state with particularity the grounds and authority on which it is based;
3. state the relief or order sought; and
4. be signed by the party or attorney.
MCR 2.119.
In addition, if the motion presents an "issue of law," MCR 2.110 (A)(2), it must be accompanied by a brief or memorandum citing the authority on which it is based. While the court rule doesn't clearly spell out exactly when a motion requires a separate brief, it is safe to assume that submitting a brief in support of your motion generally will not disadvantage your client.
Supporting affidavits and exhibits should be filed with your motion as attachments.
No motion and brief can exceed 20 pages, double-spaced, exclusive of attachments and exhibits. MCR 2.119(A)(2). In addition to filing your motion, you must provide the judge hearing it with an additional copy marked "Judge's Copy." MCR 2.119(A)(2).
The responding party may submit responding papers which can include a brief and supporting affidavits and/or exhibits.
There is no rule prohibiting the filing of reply pleadings. If a reply is warranted, you may consider filing a motion requesting permission to file a reply, along with the reply itself.
1-3-b Affidavits
If the motion you are filing requires an accompanying affidavit, it must be made on personal knowledge, state with particularity the facts admissible as evidence in establishing or denying the grounds stated in the motion, and show affirmatively that the affiant can testify competently as to those facts. MCR 2.119(B).
The affidavit begins with the following introduction (note that the county should be the county where the affidavit is being executed, not where the action is pending):
State of Michigan) ) ss: County of Oakland) EDWARD JUDE McGUINNESS, being duly sworn, deposes and says: The introductory language is followed by numbered paragraphs containing the factual claims (on numbered pages). After the body of the affidavit, there should be a signature line, with the name typed below. The office name and address should not be included here. Below the signature line, to the left, is the notary language, as follows: ______________________________ Edward Jude McGuinness Sworn to before me this ____ day of February, 1999. _______________________ NOTARY PUBLIC
1-3-c Notice of Hearing
Whenever you file a motion you must also file a Notice of Hearing and a Praecipe of Motion (depending on local rules). The Notice of Hearing indicates the date when the motion will be heard by the court. Different localities may require different practices in this context. Check your local rules to be clear on what you must file for a Notice of Hearing.
1-3-d Timing: Service and Filing
A motion must be filed at least 9 days before the time set for hearing if served by mail, or at least 7 days before the time set for hearing if served by delivery. MCR 2.119(C)(1).
Any response to a motion must be filed at least 5 days before the hearing if served by mail, or 3 days before the hearing if served by delivery. MCR 2.119(C)(2).
For good cause, the court can set a different time period for serving a motion or response. MCR 2.119(C). Do not let the lack of 7 days before a hearing or a trial stop you from filing a meritorious motion. Ask the court to exercise its discretion and permit a different schedule. You should be willing to agree to adjourn a hearing or a trial in order to litigate a motion that should be litigated before that hearing or trial. Motions in Limine are often filed at the start of or during a trial. Because you have the right to bring an oral motion during a trial (or hearing), the court should not reject a written Motion in Limine, which is served during a proceeding. If the court does refuse a written motion on grounds that you have not complied with the service requirements during a hearing or a trial, raise the motion orally (in effect, you should read your written motion into the record.)
1-4 Post-Conviction Motions
While motions filed after your client has been convicted, pursuant to
You must file your motion, together with two copies, with the clerk of the court in which your client was convicted. The clerk then will serve a copy and notice of its filing on the prosecuting attorney. Filing and service of a 6.500 motion does not require a response by the prosecutor unless directed by the court. MCR 6.503.
1-5 Preserving and Federalizing the Record
Defense attorneys must always pay attention to making a record as they try a case. This is no less true in motion practice. After making an objection, be careful not to "unmake" it by appearing to accede to the judge's ruling. For example, if you move to preclude the introduction into evidence of a photograph and your motion is denied, do not say "okay, your Honor." Instead, be clear that you are not acceding to the court's ruling, in as non-offensive a way as possible ("I understand your ruling but note my objection.") Increasingly, courts in Michigan are following the federal lead and not addressing issues because they have been waived by counsel. If you aren't certain that you have noted your objection to the court's ruling appropriately, go back to your office that evening and draft a "Motion to Reconsider" whatever ruling or rulings to which you objected. In a written Motion to Reconsider you will be able to ensure that you have been inclusive as to your grounds for objection. Be sure to include both the "state" issue (the hearsay is inadmissible and violates my client's confrontation rights under the Michigan constitution) and the "federal" issue (admitting the hearsay denied my client his Sixth Amendment right to confront witnesses).
Why is federalizing so important? The writ of habeas corpus may cause far removed and relatively unimportant in the preparation of a case for trial. However, defense attorneys, must understand how important it is to create an appellate record by making objections, and to argue both the state and federal grounds for the objection. The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) has altered and intensified not only the need to preserve the record, but the manner in which it must be done. In fact, the AEDPA can be seen as providing the support and justification for expanded motions practice, evidentiary hearings, and discovery.
1-6 What Motions Should I File?
In many ways, any defense attorney must see the AEDPA as just one more overwhelming aspect of defending criminal cases. And she isn't wrong to see it that way. After all, if a credible case can be made by the prosecution that a fact or a claim could have been presented and preserved at the trial level and wasn't, it's waived. 28 USC § 2254(d). If it could have been raised on direct appeal, and wasn't, it's waived. If it could have been raised in state post-conviction or habeas proceedings and wasn't, it's waived. While none of this is new, the 1996 AEDPA greatly increases the burden on defense counsel.
Yet, there is a way to turn this to your client's advantage. Before the AEDPA, it could certainly have been argued that a conscientious defense attorney should file and litigate a motion where she had (at least) more than a suspicion or a hunch that such a motion was necessary. For instance, she would not file a motion to dismiss the charges based on allegations of prosecutorial misconduct unless she had evidence of that misconduct, and it was sufficiently egregious to warrant such a motion. Indeed, even if it were that egregious, she might decide, for reasons of trial strategy or because she thought the motion unlikely to succeed, not to file it. She could do so, secure in the knowledge that should more evidence come to light later on, and it were evidence which she could not have reasonably located through the exercise of due diligence, such a challenge could be mounted in a federal habeas corpus proceeding. See Keeney v Tamayo-Reyes, 504 US 1; 112 SCt 1715; 118 LEd2d 318 (1992). That is no longer the case under the AEDPA unless the prosecutorial misconduct is of such a nature that the defendant could not only show prejudice (a difficult enough endeavor), but innocence of the crime itself. 28 USC § 2254 (e)(2)(A).
In other words, after the AEDPA, if the defense attorney has any reason at all to file such a motion, she must do so. The price of failing to do so is that the issue can never be raised in a federal court unless it is accompanied by proof of actual innocence of the crime, combined with a constitutional violation.
If you can think of a good faith reason to file a motion, you should do so, and you should cite the bipartisan-sponsored AEDPA if your motion practice is criticized as frivolous or vexatious. For example, you should consider whether to file a motion to recuse an unfair judge. You can argue that it should require a lesser showing than a motion to recuse a judge for cause, because there is heightened deference to the trial judge's findings of fact under the AEDPA, § 2254(d); namely, such findings cannot be overturned except in the most extraordinary of circumstances. 28 USC § 2254(e)(1).
Another advantage of a vigorous motion practice is that it gains you the respect (if not the liking) of the trial judge and sometimes even the prosecutor. As a result, aggressive and creative motion practice will lead to better offers for your clients. It will also guarantee that you try a better case.
1-7 Authority for Aggressive Motion Practice
The National Legal Aid and Defender Association's Performance Guidelines for Criminal Defense Representation provide defense counsel with further support for vigorous motion practice. Because the "paramount obligation of criminal defense counsel is to provide zealous and quality representation to their client," NLADA Guideline 1.1, counsel "should consider filing an appropriate motion whenever there exists a good-faith reason to believe that the applicable law may entitle the defendant to relief which the court has discretion to grant," NLADA Guideline 5.1(a). Further, counsel should withdraw or decide not to file a motion "only after careful consideration, and only after determining whether the filing of a motion may be necessary to protect the defendant's rights against later claims of procedural default." NLADA Guideline 5.1(c).
Finally, the Michigan Rules of Professional Conduct provide further support for tireless motion practice by defining the role of a criminal defense attorney as different from all other attorneys in this context. While the Rules prohibit attorneys from raising an issue without a good faith, non-frivolous basis, a criminal defense attorney "may so defend the proceeding as to require that every element of the case be established." MRPC 3.1.