La. Admin. Code tit. 22 § XV-723

Current through Register Vol. 50, No. 11, November 20, 2024

Section XV-723 - The Duty to File Pretrial Motions

A. Counsel should consider filing an appropriate motion whenever there exists a good-faith reason to believe that the defendant is entitled to relief which the court has discretion to grant.

B. The decision to file pretrial motions should be made after considering the applicable law in light of the known circumstances of each case.

C. Among the issues that counsel should consider addressing in a pretrial motion are:

1. the pretrial custody of the accused;

2. the constitutionality of the implicated statute or statutes;

3. the potential defects in the charging process;

4. the sufficiency of the charging document;

5. the propriety and prejudice of any joinder of charges or defendants in the charging document;

6. the discovery obligations of the prosecution and the reciprocal discovery obligations of the defense;

7. the suppression of evidence gathered as a result of violations of the Fourth, Fifth or Sixth Amendments to the United States Constitution, or corresponding state constitutional provisions, including:

a. the fruits of illegal searches or seizures;

b. involuntary statements or confessions;

c. statements or confessions obtained in violation of the accused's right to counsel or privilege against self-incrimination;

d. unreliable identification evidence which would give rise to a substantial likelihood of irreparable misidentification;

8. suppression of evidence gathered in violation of any right, duty or privilege arising out of state or local law;

9. access to resources which, or experts, who may be denied to an accused because of his or her indigence;

10. the defendant's right to a speedy trial;

11. the defendant's right to a continuance in order to adequately prepare his or her case;

12. matters of trial evidence which may be appropriately litigated by means of a pretrial motion in limine;

13. matters of trial or courtroom procedure.

D. 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, including later claims of waiver or procedural default. In making this decision, counsel should remember that a motion has many objectives in addition to the ultimate relief requested by the motion. Counsel thus should consider whether:

1. the time deadline for filing pretrial motions warrants filing a motion to preserve the client's rights, pending the results of further investigation;

2. changes in the governing law might occur after the filing deadline which could enhance the likelihood that relief ought to be granted;

3. later changes in the strategic and tactical posture of the defense case may occur which affect the significance of potential pretrial motions.

La. Admin. Code tit. 22, § XV-723

Promulgated by the Office of the Governor, Public Defender Board, LR 35:667 (April 2009).

AUTHORITY NOTE: Promulgated in accordance with R.S. 15:142, 147 and 148.