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What is a Brief?

On Behalf of | Feb 16, 2021 | General Blogs

In a criminal case, sometimes motions are filed. When a motion is filed, a judge has one of two options to tell the lawyers what to do after we argue it. Once a lawyer files a motion, for example, let’s say it’s to try to get the case thrown out for an illegal traffic stop or a search without a warrant or a bad search warrant. After the testimony is had in court at that suppression hearing, a judge will order the parties, either to orally argue it, which means the lawyers just stand up and argue it right there or to brief it, which is usually more common.

 What Does Briefing Mean?

It means written arguments that are submitted to the judge. Usually, the order goes like this, for example,  the defense, if they’re bringing the motion, we have to write the first brief. First, we file a notice of motion to suppress. Meaning that we’re putting the court and the prosecutor on notice that we want to try to suppress evidence because we believe that your constitutional rights were violated. That notice has to be filed well in advance. And then, the court sets a hearing called a suppression hearing, usually. In that suppression hearing, or sometimes it’s called a Contested Omnibus Hearing in Minnesota, or even what’s called a Rasmussen Hearing. At any rate, lawyers then have to brief it. We’ll call that a memorandum of law or their suppression memorandum.
We file a big old, long brief. Sometimes, it’s five pages long. Other times, it’s 80 pages long. It just depends on the nature of the case, citing all of our legal arguments. In that, we put the facts of the case, as well as the law, the legal argument, citing case law. Sometimes, using exhibits. Sometimes, using testimony from a hearing.
Then, the judge gives the other side an opportunity to respond to that. Usually, that’s the prosecution. They’ll put in, what’s called a Memorandum in Opposition, which means they’re opposing our position on that and telling the judge why they shouldn’t grant our motion to suppress the evidence. And then, sometimes, the defense gets a chance to do, what’s called a Reply Memorandum, where we get to respond to the prosecutor’s arguments. Next, it would go, Defense Memorandum, which means our written argument. Then, the Prosecution Brief, and then a defense reply to that brief.

The Judge’s Role in Briefing

Once the judge takes all of that information is the judge reads through everything, and then the judge will issue what’s called an order on those arguments. An order is a judge’s written decision about this. It can be appealed later under some circumstances, but that’s for another video. The point is that sometimes the judge’s order can grant all of the arguments that the defense raises for you. Other times, the judge can reject all of the arguments, of course. Sometimes, we get kind of a hybrid decision, where the judge will grant some of our suppression motions and deny others.
If you have more questions, I’m a Criminal Defense Attorney, Ryan Pacyga. You can call me at 612-474-5420, or you can find me at arrestedmn.com.