By Holly Hobart, Senior Program Director
Protecting fair trial rights demands much more than just the presence of a defense lawyer on the day of trial. It requires that qualified defense lawyers are proactive, creative, and comprehensive throughout the entire legal process. This is especially true for legal aid lawyers whose clients belong to the most marginalized communities and are at high risk of abuse and discrimination in the criminal justice system.
A newly released ILF resource provides practical guidance for legal aid lawyers on one of the most effective legal tools to defend fair trial rights from the moment of arrest: pretrial motions.
Pretrial motions are applications to the court requesting a decision on issues before the trial begins. They are a practical mechanism through which defense lawyers can demand a remedy from the court for violations of fundamental rights and thereby uphold the rule of law. Pretrial motions can be used to exclude evidence obtained through torture, challenge unlawful arrest or illegal search and seizure of evidence, or to secure a legal remedy to in-custody abuse. In the long term, such motions help ward off misconduct and corruption, curb abuse by authorities, combat prejudice, reduce arbitrary detention, and increase efficiency of the justice system by providing a means to dismiss cases before a trial starts.
Despite their effectiveness, the use of and familiarity with pretrial motions varies widely from country to country. When we first began working in Afghanistan, for example, pretrial applications were exclusively made to the prosecution, despite legal provisions allowing for motions to be filed to the court. Individuals who were being detained illegally had no recourse if the prosecutor denied release and defense lawyers were not demanding to have a hearing on the issue in front of a judge pursuant to sections of the law specifically enacted for that purpose. As legal systems around the world move increasingly towards adversarial (as opposed to inquisitorial) legal frameworks, a robust motions practice will be an important tool for defense lawyers to provide quality representation and protect clients’ rights.
Building on two decades of experience training lawyers in various country contexts, the ILF has developed this new tool, Pretrial Motions: A Primer for Legal Aid Lawyers, to urge and empower legal aid lawyers worldwide to incorporate the critical component of pretrial motions practice into their day-to-day representation of clients. This resource is meant to be an introduction to pretrial motions practice and will be followed by a series of practical country guides that are tailored to local laws, conditions, and practice to help legal aid lawyers advance the use of pretrial motions in their specific jurisdictions.
There is so much we need to accomplish to strengthen justice systems around the world, but as lawyers, there are things we can do right now to help ensure implementation of the laws in place and demand equitable justice for our clients. Developing a pretrial motions practice is a concrete action lawyers can take to protect people’s rights, reduce incarceration, and help remedy injustices.
Click here to access our new resource, Pretrial Motions: A Primer for Legal Aid Lawyers. Should you have questions or feedback, please feel free to contact us at Info@theilf.org.
Display image: © Samar Hazboun for the International Legal Foundation