Category Archives: Motion Practice

Motion Practice

Motion in limine to keep out videos per stipulation

May Hearing

Motion to suppress statement

Motion to dismiss the indictment

Motion in limine to keep out 404b evidence

Motion in limine to keep out videos per stipulation

In most child pornography cases, the defense will not turn on whether or not the child pornography was actually child pornography. Thus, the defense can stipulate to this element of the defense to avoid having the State show the contraband files to the jury. Of course, the State will strongly resist this. They know that by showing these images to the jury, some will be so upset that it may be difficult for them to give the defendant a fair trial. When I first made this argument, there was no real case law on this topic. Luckily, there is now.


In U.S. v. Cunningham, the Third Circuit said that “unless the Court determines that, considering the potential of unfair prejudice, the probative value of a proposed video excerpt is so minimal that it need not watch that excerpt, the Court must view the proposed video excerpts to not only assess their probative value and potential for unfair prejudicial impact but also to appropriately evaluate their admissibility in light of Rule 403’s concern with redundancy”.


In Cunningham, the Court didn’t even want to watch the videos (who would want to?) but that shouldn’t be an issue with New Jersey’s May hearings. Thus, after the Court makes a ruling as to the May hearing the defense should consider then stipulating to the images that the Court found admissible. Then, the defense can argue that pursuant to U.S. v. Cunningham, that the probative value is therefore minimal and the horrific nature of the videos is incredibly prejudicial.


Following an adverse ruling on this issue, defense counsel should then ask in the alternative for the State to be limited in the amount of videos it shows the jury as well as the amount of each video is shown.

Jersey City Child Pornography Lawyer

May hearing

To deal with the issue of whether the child pornography is in fact child pornography and not virtual child pornography or adult pornography, courts in New Jersey will hold a May hearing named after the case of State v. May. In a May hearing, the images/videos will be shown to the Court and the Court will indicate which files will be permitted to be shown to the jury. I don’t think most cases in New Jersey will really involve a hotly contested May hearing however, there may be a dispute as to a few videos that the State doesn’t realize are actually adult pornography.


The attorney can also use this as a 104 hearing to keep out some videos that might be too prejudicial to be shown to the jury. If there are 20 videos, the defense can argue that they will stipulate to some or all of them so that the jury will be shown less than 20 and that the most horrific files should not be shown.

Trenton Child Pornography Lawyer


Motion to suppress statement

This may be the most important motion in the case because if the client made a statement, chances are they hung themselves in it. It is the most frustrating part of criminal defense because if the statement comes in, it will foreclose a number of defenses thus limiting the defendant’s chance at trial. There are countless articles, books and cases on Miranda motions so I am not going to attempt to recreate that here. However, I will make a few points.


First, file the motion even if the statement may be helpful to the defense. I would rather have no statement then any statement in almost every case. Second, consider having the defendant testify so as to gauge their reaction to the witness stand, cross examination, etc. This will allow the attorney to decide if the defendant should testify at trial. I have used this successfully to determine that the defendant will fold under cross examination and that there is no way they could be called at trial.


An issue not focused enough at a Miranda hearing is the demeanor of the parties. Since most statements are now videotaped in New Jersey and other jurisdictions, highlight for the court the demeanor of the parties and the psychological tactics used. This can also be brought out under cross examination. It also helps if the defendant starts crying right before the admission when there was previously a denial. I argue that this transition point is where the defendant’s will was overcome and he was broken down by the detectives. This argument has been successful in my practice. Regardless, you are painting a nice picture for appeal.


Unfortunately, child pornography defendants seem all too eager to spill the beans and thus, they may not break down. Instead, they may start confessing right away even through some tears. It may be hard to argue they they were broken down so quickly. Instead, the attorney may want to focus on any coercive statements that were made to the defendant to get him/her to testify. While there is not a lot of case law indicating that same will lead to victory, it is still an argument to be made. Furthermore, cross examination on these issue (i.e. lies) can be later used at trial. Thus, a skilled defense attorney can use any testimonial hearing as a form of deposition.

Newark Child Pornography Lawyer

Motion to dismiss the indictment

I am a big fan of filing a motion to dismiss the indictment. The motion will rarely be won but it could expose weakness in the State’s case that could lead to further plea negotiations. For example, I filed a motion to dismiss the indictment in a child pornography distribution case. When we conferenced the case with the judge, he indicated that we had a good case and that the State should strongly consider taking state prison time off the table. The judge, being a talented litigator before he became a judge, gave great insight into the State’s case. In fact, we strongly considered a bench trial as a result. Thus, even though we lost the motion, it really helped open a number of avenues for discussion that were not on the table previously.


There are number of areas for the defense to attack the indictment including but not limited to: failure to present Hogan evidence, presenting prejudicial evidence, failure to explain the law properly or completely as well as failure to present enough facts to sustain the charge. Keep in mind that not all problems with the indictment are fatal. While rare, I have seen cases where the State re-presented the case to the grand jury to cure the defects in the indictment.

Northampton Child Pornography Lawyer

Motion in limine to keep out 404b evidence

A motion in limine (lim-a-nay) is a basically a motion to permit or (more often) exclude a piece of evidence. In my opinion, it is the most underused but most powerful tool a criminal defense attorney has. Used correctly, it can really carve up the State’s case and leave them without some of their best evidence. Care must be taken to consider how and when to use this motion. Like just about everything, I take a case by case approach but I rarely file them for evidence issues that are rather basic. For example, if someone gives a statement to an officer that is clearly hearsay, you don’t need to file a motion on that. Either the State will not elicit that testimony or an objection at trial can be made.


Instead, I focus my motions on complex, unique and very important evidence issues such a prejudicial evidence. Regardless of when these motions are brought (before or during trial) it really helps the have these issues briefed well ahead of time. However, don’t be surprised about the State’s resources. In one phone call, they can have a number of prosecutors give them a case to argue. You’ll want someone available to do some quick research on the fly to counter these arguments. Modern technology makes this easy.


Keep in mind that in some jurisdictions like New Jersey, the State must file a motion to admit 404(b) evidence ahead of time. Of course, they don’t always do so. Because some of these hearings may result in testimonial evidence, you may want to consider filing a motion in limine well ahead of trial.


Issues to consider include but are not limited to, opinions by any witness as to the defendant’s guilt, motive or interest in children; any reference to molesting children; as well as any reference to other deviant sexual acts or interests in same. None of that is relevant to the State’s unless the defense’s case puts any of those topics at issue pursuant to 404(b). Thus, care must be taken to craft a defense that does not open the door to same. Playing your cards as close to your vest as possible is always the best strategy.

Chester County Child Pornography Lawyer