The defense attorney's main tool before trial starts.
Motions
A motion is a formal request for the court to do something: suppress illegally obtained evidence, order the prosecution to hand over discovery it has been sitting on, dismiss charges that can't be supported, or exclude a witness whose testimony would be unfair. Motions decide what evidence a jury will hear. In some cases, a motion ends the case before trial.
How motions work: filing, opposition, and hearing
Most motions are filed with the court as written documents, called pleadings. The motion sets out what the defense is asking for and the legal and factual basis for the request. Once filed, the court schedules a hearing, and the prosecution files a written opposition arguing that the motion should be denied.
The hearing itself can take different forms depending on the type of motion. Some motions are argued purely on the law: the attorneys present their legal arguments to the judge, with no witnesses. Others require an evidentiary hearing where witnesses testify and are cross-examined. That is common in suppression motions where the facts of a stop, arrest, or search are disputed.
After the hearing, the court issues a ruling: the motion is granted, denied, or granted in part. The ruling is typically put into a written order, though rulings made during trial are often stated on the record and in the court minutes rather than in a separate written document.
Common motions in a criminal case
Every case is different, but a handful of motions come up again and again. Think of them as tools. Some fit a given case, others don't.
Motion to suppress evidence
Often the motion that decides the case. Filed when evidence was obtained through an unlawful search, seizure, or interrogation: a stop without reasonable suspicion, a search without a warrant or valid exception, a statement taken in violation of Miranda. If the motion is granted, that evidence is excluded. In cases where the suppressed evidence is the prosecution's core proof, the charges often can't survive.
Motion to dismiss
Asks the court to throw out the case entirely. Grounds include insufficient evidence to support the charges, expiration of the statute of limitations, violations of the defendant's speedy trial right, or procedural defects in how the charges were filed. A successful motion to dismiss ends the case before trial.
Motion for discovery
Filed when the prosecution hasn't produced evidence it's obligated to turn over: surveillance footage, lab results, witness statements, or Brady material (evidence favorable to the defense, which Brady v. Maryland requires prosecutors to disclose). The motion asks the court to order production. See the discovery page for more on what the prosecution must disclose.
Motion in limine
"In limine" is Latin for "at the threshold." Filed before trial to exclude specific evidence or testimony from being presented to the jury. Common uses: preventing the prosecution from mentioning prior unrelated convictions, excluding evidence that is more prejudicial than probative, or barring expert testimony that doesn't meet the legal standard for admissibility.
Motion to exclude a witness
Filed to prevent a specific witness from testifying, typically because their testimony is irrelevant to the charges, would be unfairly prejudicial to the jury, or because the witness has a clear bias or motive to lie that makes their testimony more harmful than useful.
Motion for an advisory acquittal or judgment of acquittal
Nevada has no binding directed verdict in jury trials. If the judge finds the evidence insufficient after either side rests, the judge may advise the jury to acquit, but the jury is not bound by that advice (NRS 175.381). After a guilty verdict, the judge can set the verdict aside and enter a judgment of acquittal if the evidence was insufficient. That motion must be made within 7 days after the jury is discharged.
Motion for mistrial
Filed when something that occurs during trial (juror misconduct, improper statements by the prosecutor, exposure to inadmissible evidence) makes a fair verdict impossible. If granted, the trial ends and must be retried (unless the mistrial was due to prosecutorial misconduct, which can result in dismissal with prejudice).
Motion for a new trial
Filed after conviction when errors during trial affected the outcome, or when new evidence surfaces that wasn't available before. A newly discovered Brady violation (exculpatory evidence the prosecution withheld) is a common basis.
When you can and can't appeal a ruling
Most rulings on motions cannot be immediately appealed. The general rule is that only final judgments (a verdict and judgment of conviction) can be appealed right away. Rulings made on pretrial motions, evidentiary issues during trial, and similar orders are reviewed on appeal after the case concludes, not in real time.
For an issue to be reviewable on appeal, it must have been preserved, meaning the objection or motion must have been raised in the trial court and the ruling must be on the record. Issues not raised below are waived. That is why the defense needs to file and argue motions throughout the case, not just at trial.
There is one path for immediate review of a lower court ruling: an extraordinary writ petition to the Nevada Supreme Court. It is either a petition for writ of mandamus (an order directing the judge to do something the law requires) or a petition for writ of prohibition (an order stopping the judge from acting beyond the court's authority). These challenge a lower court's ruling in real time, before the case concludes. The standard is very high: the lower court's order must be "manifestly wrong and contrary to clearly established law." These petitions are rarely granted, but they exist for serious errors that can't wait for a post-conviction appeal.
Which motions apply to your case
There's no universal answer. A motion to suppress that wins one case doesn't exist in another case where the search was lawful. A motion to dismiss for insufficient evidence is viable in one case and not in the next. The right set of motions depends on the specific facts: how the stop or arrest happened, what the prosecution's evidence is, who the witnesses are, and what legal defects exist in the charges or the investigation.
Identifying which motions are available, which are worth filing, and which are likely to succeed requires a thorough review of the discovery and a working knowledge of Nevada criminal procedure. Missing a viable suppression issue, or failing to file before the deadline, can eliminate an option that would have changed the outcome of the case.
Call 702-990-0190 to go through the facts of your case and identify what motions apply.
Motions FAQs
What people ask first.
Page last updated . Written by Michael Mee, Nevada Bar No. 13726.