Pretrial Motions to Reduce Felony Charges


Pre-trial is the time period between the arraignment and the actual trial. It is the time attorneys will file motions for certain things, such as a hearing to exclude evidence, obtain additional time, or reduce charges. Motions to reduce charges can be particularly beneficial in a felony case where a lesser included charge is a misdemeanor, thus eliminating the felony from consideration. There are two ways to achieve this; a reduction at a preliminary hearing, or by filing a motion to reduce charges.

Reduction Generally

  • The rationale behind a a reduction is that the charges as filed are not supported by the facts. While each state's criminal law varies, the prosecutor's office will file, generally speaking, the highest or most severe charge they believe the facts support. Sometimes there can be political pressure placed on a prosecutor to file severe charges, particularly in high profile cases.

Reduction at Preliminary Hearing

  • Criminal cases start with an arraignment, where a defendant enters a plea of guilty or not guilty. If a defendant pleas not guilty, there will be a preliminary hearing where the prosecution presents it's case, outlying the particulars of the alleged crime, and asking the defendant be held on the charge for trial. The judge will review the evidence offered by the prosecution to determine whether probable cause exists for the defendant to be held for trial on the state's charges.

    A judge at a preliminary hearing that does not believe probable cause exists for the charge presented can refuse to hold the defendant on that charge. The judge can either hold the defendant on a lesser charge (which the state will amend it's complaint to reflect) or the state can withdraw and re-file it's case with a lesser charge.

Reduction Upon Motion

  • If there is no reduction at a preliminary hearing, a defendant can file a motion to reduce charges, or challenge the sufficiency of evidence, which will be handed at the pre-trial stage of the proceedings. Typically these types of motions relate to indictments issued by a grand jury. Under New York Criminal Procedure Section 210.35, a indictment can be dismissed if there was a defect in the grand jury, or under Section 210.30 on the basis of insufficiency of grand jury evidence.

    In California a defendant can file a Penal Code Section 995 motion challenging the sufficiency of the evidence. A 995 motion can be filed in any criminal case to challenge the sufficiency of the state's evidence. Where the judge has found probable cause at a preliminary hearing, a different judge will review the transcript to determine whether adequate probable cause exists.

Reduction Upon Negotiation

  • In addition to preliminary probable cause and formal motion reductions, a defendant, either by himself or through counsel, can talk to the prosecution to discuss the possibility of reduced charges, particularly in exchange for a guilty plea. Where the lesser included is a misdemeanor, this can save a defendant from a felony conviction without the uncertainty of a bench or jury trial.


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