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Sex offense cases often involve the filing of many pretrial motions that are not typically filed in the defense of other criminal cases. 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 related to the case, and the results of any scientific tests related to the case.
The Constitution also requires the prosecution to disclose any evidence that is exculpatory, which includes any evidence consistent with our client’s innocence.
Problems arise, however, when there is additional evidence that may exist, which the prosecution is not required to disclose by law, and which the defense cannot easily obtain. In cases where there is an alleged victim, we may want to obtain privileged information about the accuser’s past that would otherwise not be available to the public. 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, the prosecution will sometimes collect physical evidence or electronic devices but refuse to test or examine it. This evidence may help prove our client’s innocence. We need to know about it, gain access to it, and have it examined.
To gain access to privileged records or untested evidence, we must file particularized discovery motions. These pretrial motions must be filed well in advance of the scheduled trial to provide 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.
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.
We have been successful in suppressing critical evidence in child pornography cases as well as many other types of sex offense cases.
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.
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.
Unfortunately, we now live in times where a person can be accused of anything, even when it is false. Bernard is the attorney who knows the law and what law enforcement can and cannot do. The results were outstanding!
A defendant has the absolute right to an indictment that is perfect in both form and substance.
We may file a demurrer, which is a motion alleging a defect in the indictment or attacking the constitutionality of the statute that forms the basis of the indictment.
In child molestation cases, the prosecution normally alleges 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 successfully obtained dismissals of many sex offense indictments (see Our Results for examples).
In some cases, the prosecution is permitted to re-indict the case. However, Georgia law provides that if two indictments are dismissed as the result of successful demurrers, the State is prohibited from seeking a third indictment. It is crucial that we uncover and address any potential defects in the indictments because this provides us with yet another way of achieving a dismissal before trial.
We examine the legal issues in our clients’ cases from every angle to determine any effective technical challenges to the charges. We have been able to achieve dismissals in myriad circumstances, including cases involving violations of the statute of limitations, on grounds of double jeopardy, and for violations of our client’s right to a speedy trial.
In cases that receive media attention, it is important that we determine whether we need to file a motion to change venue. Media coverage can cause residents of an area to develop both conscious and unconscious biases toward our client in addition to biases they may already hold. After sufficient coverage, any jury pool would likely be unable to remain objective in deciding the case. Moving the case to a new venue may help us receive a jury pool that has not already been tainted by pretrial publicity.
We know the importance of criminal pretrial motions because we have seen them help our clients time and time again. Read Our Results page to learn more about how we have utilized pretrial motions to successfully defend clients charged with sexual offenses in Georgia.
